Public Procurement Act, 2003 (Act 663)

FIRST SCHEDULE Categoriesof Entity TehderCommittees , '• I SECONDSCHEDULE ',1 : Thresholdfor Ministries,Departmentsand Agencies ·, THIRDSCHEDULE Thresholdsfor RegionalCoprdinatlngCouncilsand Metropolitan, Municipaland DistrictAssemblies ; ' FOURTHSCHEDULE ( Compositionof TenderReview Committees I FIFTHSCHEDULE ,, . ... , .•r'1 Threshold/orProcurementMe.thods I SIXTH SCHEDULE StandardTenderDocumentsand Standardf?.equest for Proposals I • 2 bysection58ollhePUbric TheScheduleswereSllbsUtuted Procurement Act.2016(Act914), (Amoodment) : 5 THE SIX HUNDREDANDSIXTY-THIRD ACT OF THE PARLIAMENT OF THE REPUBLIC OF GHANA ENTITLED THE PUBLIC PROCUREMENT ACT, 2003 AN ACT to provide for public procurement, to establish the Public Procurement Authority, make administrative and institutional arrangements for procuren,ient, stipulate tendering procedures and provide for related matters. DATE OF AsSENT: 31st December, 2003. ' by Parliament as follows: BE IT ENACTED . PARTONE Establishment of the Authority Public Procurement Authority 1. (1) There is established by this Act a body to be known as the Public Procurement Authority. (2) The, Authority is a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name. (3) The'. Authority may acquire, bold, manage or dispose of any movable or ipimovable property in connection with the performance of its functions and may enter into contracts and transactions that are reasonably related to its functions. Object of th~ Authority 2. The object of the Authority· is to harmonise the processes of public procurement, in the public service to secure a judicious, economic and efficient use of state resources in public procurement and ensure !hat public procurement" is carried out in a fair, transparent and non-discriminatory, environmentally and socially sustainab/e 3 manner. 3 insertedbysoctlon1of IllePubllcProcuremenl Act,2016(Act914). (Amendment) ' 6 Functions of the Authority 3. In furtherance of its object the Authority shall (a) make proposals for the formulation of policies on procurement; (b)'ensure policy implementation and human resource .ldevelopment for public procurement; (c}' develop rules, instrus:tions,other regulatory documentation on j public procurement and formats for public procurement : documentation;4 (d): monitor and supervise public procurement and ensure rcompliance with statutory requirements; (e);have the right 'to obtain information concerning public '.procurement from contracting authorities; (/) establish and implement an information system relating to public procurement; (g) publish by the end of each month tr Public Procurement Bulletin which shall contain information germane to public procurement, including proposed procurement notices, notices of invitation to tender and contract award information; (h) assess the operations of the public procurement processes and submit proposals to the Boarrf for improvement of the , processes; (i) :present annual reports to the .Ministe~ on the. public ;procurement.processes; • 0) 'facilitate the training of public officials involved in public ~rocurement at various levels; (le)r develop, promote and support training and proiessional development of persons engaged in public procurement, and ensure adherence by the trained persons to ethical standards; (I)5,advise Government including Metropolitan, Municipal and •District Assemblies 1 on issues rel.ating~opublicyrocurement; (m) organise and participate in the complaints and' administrative f review procedures in Part S,even; • byparagraph 4 Amended (a)ol sedlon2 of1hePIJbllc Proalrement Ad.2016(Act914)bythe (Amendment) deletionof•dratl'.1 s Substituted by paragraph(b)of sectlon2 of thePIJbllc (Amendmenl)Act, Procurement 2016(Act914). 'Insertedbypa,agraph (c)ofsection2 ofthePubllcProcurement Act,2016(Act914). (Amendment) 1 lnserled byparagiaph (d)of sedlon2 of~ PublicProcurement Ad.2016(Act914). (Amendment) 'lnserledbyparag►aph (e)ol sedion2 of lhePub&:Proalremenl 2016(Act914). (Amendmenl)Act. 7 (n) plan and co-ordinate technical assistance in the field of public :procurement; (o/maintain a register of procurement entities andlmembers of and • secretaries to tender committees of public procurement entities; (p) maintain a. data base of suppliers,. contractors and consultants .. )and· a record of prices to assist in the work of procurement ·;entities; (q/investigate and debar from procurement practice under this Act, suppliers, contractors and consultants who have seriously • neglected their obligations under a pubUc procurement contract, have provided false information about thei.r qualifications, or offered inducements of the kind referred to in section32; (r)~maintain a list of firms that have been debarred from Jparticipating in public procurement and communicate the list to • 'procurement entities on a regular basis; (s). hold an annual forum for consultations on public procurement.-·- ; and other related issues; (t); assist the local business community to become competitive and,. , efficient suppliers to the public.sector; and (u);perform such other functions·as are incidental to the attainment . •of theobjects of this Act. . Governing body of the Authority 4. (1) The governing body of the Authority is a Board consisting of nin_e persons. (a) a person competent and experienced in public procuremenl, as '1 the chairperson; (b) four persons from the public sector made up of one ', •r.epresentatjve of the.-Attorney General and three· otl~r : persons no1ninatedbjr the lv[inister, one -of w.hom is a woman '·. and each-of whom is a person who has--experience.in public ; , procurement and is familiar with • governmental and ·' ) --m1dtilatel'alagency procurement procedures,: .. ; : - • ,; (cf tliree persons from the private sector who have ·experience in procurement, al least one of whom is a woman; and (d) the ~hief executive officer of the Authority. 'This seclionwas subslituted bysedion3 of lhePublicProcurement (Amendment) Iv:;.,2016(Ac!914): 8 (2) The vice chairpersonshall be elected by membersfrom among their number: (3) 171emembers of the Board shall be appointedby the President in accordancewith article 70 of the Constitution. (4) The Board shall ensure the proper and effectiveperformance of thefunctions of the Authority. Term of offic~- 5. (1) A member of the Board other thanthe chief executiye officer, (a;-shall hold office for a term of four years and is eligi"blefor. : reappointment for another term only; (b);may in writing addressed to the President through the Minister 'resign from office . • (2) A member may be removed from office by the President acting in consultation y,,ith the Council of State for inability to perform the functions of office, infirmity or any other sufficient cause. (3) Members shall be paid allowances determined by the Minister. -Meetings of the Board 6. (1) The Board shall meet at least once every three months for the despatch of business at the times and places determined by the chairperson. (2) The chairperson shall preside at meetings of the Board and in the absence of l;he•chairperson the -vice-chairperson shall preside and in the absence of both.the members shall elect one of their number to preside. (3) The; quorum for a meeting of the Board is five including the chief executive officer. (4) The:Board may co-opt a person to act as adviser at a meeting of the Bo.ard but a.,co--optedperson does not have the right to vote on a matter ' before the Board for decision. (5) The' validity of the proceedings of the Board shall not be affected by a vacancy among its members or by a defect in the appointment or qualification of a member. (6) Except as otherwise expressly provided, the Board shall determine the procedure for its meetings. Committees'of-the Boaro--------- ' may for lhe performance of its functions appoint committees 7. The Bo~d of the .Board;comprising members of the Board o.r non-members or both and may assign lo a committee a function of the Board as determined by the- 9 Board, but a 'committee composed entirely of non-members may only advise the Board. Secretariat of the Authority 8. (1) The Authority shall have a secretariat with the divisions and structures determined by the Board as may be necessary for the effective execution of its functions. (2) The'.Authority shall have an officer to be designated the secretary who shall perform the function of keeping accurate records of proceedings and decision~ of the· Board and any other functions directed by the chief executive officer. {3) The,Authority may engage the consultants and advisers who it may require for the proper and efficient performance of the functions of the secretariat. Chief Executive of the Authority 9. (1) The chief executive officer of the Authority shall be appointed by the President in accordance with article 195 of the Constitution. . ' (2) The chief executive officer shall hold office on the, terniS and conditions specified in the letter of appointment to office. (3) Sub}ect to the general directions that the Board may give, the chief executive officer is responsible for the day-to-day administration of the secretariat. of. the Authority and the implementation of the decisions of the Board. • (4) Theichief executive officer may delegate a function of the office of the chief executive officer to an officer of the secretariat but is not relieved ' r~sponsibili!Yfqr the performlll'.)ce,ofthe ~elegatt:d.Il!!19tion. of th~ ultimate Funds of the!Authority 10 10. (l) Thefunds of the Authority include (a) . moneys provided by Parliament; (b) administrative fines, fees and other income accrui11g.to the ; Authority in the performance of ifs fimctions; (c) ) donations, grants ahd gifts; and (d) i'· any other moneys provided by the Minister. (2) The !rfinister may, by legislative instrument, make provision for the 0 ' Thi~sectionwassubstiMoobysecilon4 o4thoP\Jblic Proc\Jrement (AmendmenQ Ad, 2016{Acl914). <• ,,... ' ' .. 10 Authority to retain part or all of its internally generated fimds for specified purposes. j I . Accounts and audit 11. (1) Thf Authority shall keep books of account and proper records in relation to tljem in the form prescribed by the Controller and Accountant- General and approved by the Auditor-General. (2) 'llie books and accounts of the Authority shall be audited annually by the Auditor-General in accordance with article 187 of the Constitution. ! Financial year or Authority 12. The financial year of the Authority shall be the same as the financial year of the Government. Annual report 13. (1) The Board shall within three months after the end of each year, submit to the Minister a written report indicating the activities and operations o~the Authority in respect of the preceding year. (2) 11\C annual report shall include a copy of the audited accounts together with the Auditor-General's report and the Minister shall as soon as practicable after receipt of the annual report submit the report to Parliament with the comment that the Minister considers necessary. (3) The part of the annual report concerning a Metropolitan. Municipal or a District Assembly and the relevant part of the audited accounts, toge/her with relevant parts of the Auditor-General'.s Report affec1ing specific Metropolitan, Municipal or DistricJ Assemblies sha7111 be S11bmi~ted to that Metropolitan, Municipal or District Assembly for debate. l PARTTWOu ! • Procurement Struchues Scope and a~plication 14. (1) This Act applies to • (a) the procurement of goods, works and services, financed in whole or in part from public funds; (b) junctions thaJpertain to the procurement of goods, works and " Insertedbysedfon5 <JIIllePubicProcurement (Ameodmenl}Ad. 2016(Ad914). . 6dlhe Publ'lcProcurement u llils Partwassubslltuledbyseclion (AmMdmenl)Ad.2016(Ad914). 11 services including the description of requirements and , sources of supply, selection and award of contracts and the • phases of contract administration; (c) the disposal of public stores, vehicles and equipment; and (di procurement with public funds including loans procured by government, grants, foreign aid funds and internally • generated funds except as 'exemptedunder section 96. (2) In addition to subsection (I), this Act applies to '(a) central managem,entagencies; (b) ministries, departments and agencies; (c) subvented agencies; (d) governance institutions; (el state owned enterprises to the extent that they utilise public funds; (I) public universities,public schools, colleges and hospitals; (i) the Bank of Ghana and financial institutions including public • trusts, pension funds, insurance companies and building societies which are wholly owned by the Republic or in which the Republic has a majority interest; (h) institutions established by Government for the general welfare of the public or community; (i) statutory funds, Commissions and other bodies established by Governmentfor a special purpose; aha (j) the phases of contract administration as specified in the ' Contract Administration Manuals. (3) The Contract Administrator shall (d) ,nanage th_eobligations and duties of the procurement entity ., \ specified in the contract; and • (b) ensure that the si,pplier or contractor performs the contract ! in accordance with its terms and conditions. (4) Tf,e Board may recommend ~o the Minister, mnv procurement methods where the context requires. (5) A procurement entity in conducting procurement, shall be guided by further procedures· specified in manuals, regulatory notices and guidelines issued by the Board. Declaration of procurement entity 15. (I) The Minister in consultation with the Board may, by notice in the Gazelte, declare an entity, a subsidiary or agency of an entity or a person to be a procure'inent entity. (2) Subject to approval by the Board, a procurement entity may l 12 undertake procurement in accordance with established commercial practices if (a) the procurement entity is legally and financially autonomous • and operates under commercial law; (b) it is beyond contention that public procureme111procedures are not suitable, considering the •strategic nature of the • procurement; and . (cithe proposed procurement method will ensure value for I money, provide competition and transparency to the extent i possible. (3) The approval given by the Board to a procurement entity to undertake procurement in accordance with established commercial practices shall be published tn the Gazelle. Proc11re111e11t entity 16. (/) A procurement entity is responsible for procurement, subject to ' this Act and arryother conditions that may be established in Regulations and administrative instructions issued by the Minister in cons11l1ationwith the Board (2) Procurement decisions of an entity shall be taken in a corporate manner· and'the internal units concerned shall contribute 10 the decision- I maId11gprocess. , .. ,. . ........ :.., .. ·.. Head of pro~urem~111entity . 17. (1) T!ze head of ·entity and an officer to whom responsibility is delegated are responsible and accountable .for action taken and for instructions as rfgards {h~implementation of this Act. • • • (2) 111eifab11ity i ofihenead of entity or officer to whom responsibility • •• • is delegated-is-ho1vevef's~imited-10 acts-that-are.incons_isJcnt.withis.Act . FunciiollS of ll1elle,adof a-procuremo1tentity . . . , , . 18: '(l) 111ehead of entity shall ensure that provisions of tliis Acr are complied wi(h. • •• • (2) The' concu"ent approval by a tender review committee shall not absolve the head.pf entity from accountability for a contract that may be determined th have been procured in a manner that is, inconsistent-111ith1a provision·of~his?fct·.----- (3) The head of enlity shall ' establish within the procurement entity, a procurement unit, (a) staffed-wttlrqualijied . procurement . personnel; ., . . 13 (b) empanel competent and qualified evaluationpanels; (c)ensure that at each stage of the procurement activi/)', . procedures prescribed in this Act have beenfollowed; (d)ensure that stores, vehicles and equipment are disposed of in { compliance with this Act; (e)exercise sound judgment in 'making procurement decisions; i and '(0 refer. to the entity tender committee for approval, a : procurement above the approval threshold of the head of entity. (4) The head of entity shall (a}apply the thresholds that relate to heads of entities as ' specified in the Second and Third Schedules to this Act; and (b)facilitate contract administration and ensure compliance with the reporting requirements under this Act. Procure»1ent u11it •19_ (1) '.f?iehead of a procurement entity of each ministry, cfepartment and agency· and Metropolitan, M1micipal and District Assembly, shall establish a procurement unit within the entity which shall be headed and staffed by qublifiedprocurementpersonnel. (2) The head of a procurement entity shall appoint a head of procurement of the procurement entity who shall be the Secretary to the entity tender commiltee. • • Entity tender committee 20. (1) A_procurement entity shall establish a tender committee in the manner set out in the First Schedule and in accordance with the categories set out in Scliedule IA. (2) An entity tender committee of each procurement entity shall have the composition specified in Schedule JB or Schedule JC of the First &hedu/e. 1 (3) .lfn entity tender committee may co-opt a person to act as a technical ad~is~ at a meeting of the entity tender committee, but a co-opted person shall· not vote on a matter for decision before the entity tender committee. (4) A~ entity tender coliimittee shall work within the method thresholds specified in the Fifth Schedule and approval limits specified in the Second and Third Schedules in the conduct of its duties·as regards tenders for works, goods or services. 14 (5) The thresholds applicable to an entity tender committee shall be as specified in the Second and Third Schedules. !; General provisions on thefunctio11s of 011entity tender co1m11itlee 20A. (1) An entity tender committee shall (a) ensure that at each stage of procurement activity, procedures prescribed in this Act have been followed; (b) work within the threshold limits specified in the Second • f Schedule and the method thresholds specified in the Fifth II Schedule; . (cf exercise sound Judgment in making procurement decisions; and ' (d) review and refer to the central tender review committee for ' concurrent approval, procurement above the entity tender ! committee's threshold, that has been duly i (i) processed by the procurement unit: and ' (ii) evaluated by the appropriate evaluation panel constituted . by the head of entity. (2) The chairpersons and members of an entity tender committee and a tender review'committee may delegate their functions in writing. Functions of specific entity tender co111h1ittees . 20B. (1) A~ entity _tendercommittee of a central management'agency, ministry, department and subvented agency shall •(d) review and approve annual procurement plans.and quarterly ) updates of procurement plans in order to ensure that they I support the objectives and operations of the entity; (b) confirm the range of acceptable costs of items to be procured j and match these with the available fimds in the approved i budget of the entity,: ,. (c) review the schedules of procurement and specifications and • ensure that the procurement procedures to be followed are in strict ·conformity with the provisions of thlsi:Act, the . Regulations and guide/inesmadeiunder this Act; (d) ensure that the necessary concurrent approval is obtained : from the appropriate• tender• review committee . where 1 applicable, as specified in the Second Schedule; l 15 {e) facilitate contract administration and ensure compliance with reporting requirements under this Act; and (f) assist the head of entity to ensure that stores, vehicles and equipment are disposed of in accordance with this Act. (2) An entity tender committee of a Regional Coordinating Council shall i _____ (a) review procurement plans in order to ensure that they support ! the policies and programmes of the Regional Administration, ; Metropolitan, Municipal or District Assembly; {b) co,:ifirmthe range of acceptable costs of iterns to be procured l and match these with the available fonds in the approved : budget of the Regional Administration, Metropolitan, Municipal Assembly or District Assembly; , (c) review the schedules of procurement and specifications and ensure that the procurement ptocedures to be followed ar-ein , strict conformity with the provisions of this Act, its Regulations and guidelines; (d) ensure that the necessary concurrent approval is obtained '. from the appropriate tender review committee where • applicable, as specified in the Third Schedule; (e) facilitate contract administration and ensure compliance with ' reporting requirements under this Act; and (ff. assist the head of entity to ensure that _stores, veh.icles and ' equipment are disposed of in compliance with this Act . , (3) A_neniity tender committee of a Metropolitan, Municipal or District Assembly shall , (a) review and approve annual procurement plam dnd quarterly updates of procurement plans in order to ensure that they support the policies and programmes of the Assembly; (b) confirm the range of acceptable costs of items to be procured • and match these with the available funds in the approved , budget of the Assembly; • (c) review· the schedules of procurement and specifications and i ensure that the procurement procedures to be followed are-in strict conformity with the provisions of this Act, the , Regulations and guidelines made under this Act; {tf ensure that the necessary concurrent approval is obtained ' from the appropriate tender review committee where ' applicable, as specified in the Third Schedule; 16 (e) facilitate contract administration and ensure compliance with 1 reporting requirements under this Act; and (/). assist the head of entity to ensure that stores, vehfcles and I I equipment are disposed of in compliance with this .Act. ' Applicable tl1resholds 20C. (1) The threshold limits for ministries, departments and agencies and Metrop6/itan, Municipal and District .Assembliesfor procurement shall be as spec(fi~d in the Second and Third Schedules. (2) The threshold limits for procurement methods for ministries, departments and agencies, and Metropolitan, Municipal and District .Assemblies shall be as spec(fied in the Fifth Schedule. Meetings of entity tender committees 20D. An e~liry tender committee shall meet at least once each quarter and notice of the meetings shall be given at least two weeks before the date of the . meelmg. ' Tender evaluation I panel 20E. (1) A procurement entity shall appoint a tender evaluation panel with the required expertise to evaluate tenders. (2) A tender evaluation panel shall, in the performance of its functions, proceed according to the predetermined and published rn·aluation criteria. Te11derreviei11committees I • 20F. (1) .There I• shall be established tender review committees for ministries, departments and agencies and Metropolitan. Municipal and District .Assekblies as spec(fied.in the Fourth Schedule. I (2) P,e tender review commiltee of a ministry, department or pgency • is thet... • ... J central ,. . tender review .. committee. (3) The tender review committee of a Metropolitan, Municipal and District .Asseinblyis the regional tender review commillee. (4) The members of the central tender review committee shall be appointed.b)Llhe..MinisteL.in-consulJoJiollJlliJh.J.h e...... 8wo ... a,..rtl.._ __ _ 17 (5) The members of a regional tender review committee shall be appointed by the Regional Minister in consultation with the Minister. (6) The central tender review committee, 1heregional tender review committee and each entity tender committee shall perform the functions of the tender reyiew committee for the entities for which they are r-esponsible. (7)A tender review committee shall perform the following junctions: (a) review the activities at each step of the procurement cycle leading to the selection of the lowest evaluated bid or best offer by the procurement entity in relation to the particular procurement under consideration, in· order to ensure compliance with this Act, its operating instructions and ' guidelines; (p) give concurrent approval or othenvise to enable the procurement entity continue with the procurement .process subject to subsection (1) of section 16; {f) participate in public procurement fora; and (d) review decisions of heads of entities in respect of a • complaint. (8) The regional tender review committee shall furnish the Board, MetropoJ~t.an..MunicJpat and, Djsttict Aisembly with .repqr,ts,p_eff(linLn,g (o the.regional tenqer review committee's operations in the_prescribedformal.· (9) A tender review committee. may engage the services of consultants '{n~.tJ!{viser_s0:, co-qpt p~rsoiis_l~_,Yh the spe~alised ,r3pi:,:tis_e t/:Jatit rnay require for the proper and efficient perfomiance of itsfunctions. Review of tehder revieiil commiltee decisi011s- 20G. (1) 4 procurement entitvor-lenderu agg,:_ievedbl'_lhe decision of a tender tevie):V•committei:Imay-apply: to ··rhe;-~·B'ua, d for t'lirovif?Wa"df4he~- decision of that iender review committee. •• (2) -The B~ard §hall take appropriate actipn• an,d (/eter;IJlille'the grievance in accordance with section 80(3) or as it considers appr<fpJ:im.___ _ (3):':A tenderer·-or procurement entity that is''diss.atisfied with ·a decision of the Board may seek redress in court. 18 PARTTHREE Procurement Rules Procurement plan 21. (l) A procurement entity shall prepare a procurement plan to support its approved programme. (2) The plan shall indicate (a);~on~~~ pacla}gesdescription ·or /~tsu, (b)' estimated cost for each package, 1 (cl the procurement method approvals needed14, and (d} processing steps and times. (3) A ~roc11remententity shall submit to its entity tender committee not later thap one month to the e_ndof the financial year the procuremenl plan for the following year for afproval and shall post the procurement plan on the website of the Authority. 1 (4) After budget approval and at quarterly intervals after that, a procurement entity shall submit an update of the procuremenl plan to the entity tender committee and shall post the update of the procurement plan on the website of the Authority." (5) Repealed 11 (6) A 'procurement entity shall not divide a procurement order into parts or lower the value of a procurement orde.r to avoid the application of the procedures for public procurement under this Act. Qualification of tcnderers 22. (1) A fenderer in public procurement shall (ai possess the necessary . (i) professional, technical and environmental 1 qualiflcations:1 • (il) financial resources; ' (ill) equipment and other physical facilities; (iv) managerial capability, reliability, experience in the j procurement•object and reputation.;and ll lnsooedby~ (a)ol. 7 d lhePulil'ICPnxuemenl(Amendmeflt) Ad,2016(Ad914). •• lnseltedbyJ,ofagiaph 7 ofthePutllc (b)ol sec:tlon Procurement (Amendmenl)Ad,2016(Ad914). ::~:=~::=i~::~:::==:~==:l:~~:~::~ 17Repcaod bypngraph (e)ol sec:tlon7 d lhePIJbleProcurement Ad, 2016(Ad914). (Amendment) 11 SUbslll!Jted (a)d secllon8 ollheP\JtllcProcurement byparagraph Ad, 2016(Ad 91◄). (Amendment) 19 (v) tbe personnel to perform the procurement contract; (b) have the legal capacity to enter the contract; (ba)meet ethical and other standards applicable in this country; 1' (c);be solvent, not be in receivership, bankrupt or in the process of j being wound up, not have its business activities suspended and . not be the subject of legal proceedings that would materially !affect its capacity to enter into a contract; (d) have fulfilled its obligations to pay taxes and social security 1 contributions and have paid the compensation due for damage caused to property by pollution; (e) have directors or officers who have not in any country been (i) convicted of any criminal offence relating to their professional conduct or to making false statements or mfarepresentations as to their qualifications to enter into a procurement contract, within a period of ten years preceding the commencement of the l procurementproccedings;or I (ii) disqualified pursuant to administrative suspension or debarmenf-0 proceedings. (/) meet any other criteria that the procurement entity considers iappropriate that does not discriminate and is objectively • iji,able.11 J11stt , ,, , . . . (2) Subject to the right of tenderers to protect their intellectllal property or trade secreri2, the procurement entity may require tenderers to provide apprbpriate documentary evidence or any other information that it considers useful to satisfy itself that the tenderers are qualified in accordance with the criteria referred to in subsection (1). (3) A fequirement established pursuant to this section stated in the tender documents or any other documents for invitation of proposals shall apply equal19 to the tenderers and sha/l .ife set out in ·the pre-q11alifl1:ationor pre-selection,documents. 23 l ' 11 Inserted by;Jraph (b)ol section8 olthoP\Jbflc ProaJremenl Ad..2016(Act9"14). (Amendmon() byparagraph(c)ol sodlon8 ol thoPubllcProcuremonl ,. SubS'IJliJlod Ad..2016(Ad914), (Amondmenl) 21Addedby paragraph (d)ol socilon8 olthePubficProcuremenl Ad..2016(Act914). (Amcndmonl) u Insertedbyparagraph(e)ol sedioo8 a thoPub6c:Procurement Act.2016(Ad91◄). (Amendmen1) n Addedbyl)illllWaPh(Qol secllon8 of thePublicProcuremenl (AmendmenO Act,2016(Act914), 20 (4) 11:{eprocurement entity shall evaluate the qualifications of candidates in accordance with the criteria and procedures stated in the documents r~ferred to in subsection (3). (5) Toe procurement entity shall disqualify a tenderer who submits a 4 document containing false infonnation that constitutes a misrepresenlatiorf for purposes of qualification. . (6) Toe procurement entity may disqualify a candidate if it finds at any time that the infonnation submitted concerning the qualifications of the candidate was materially inaccurate or materially incomplete. I (7) Orher rhan in a case to which subsection (l)(a) applies, a procurement entity shall not disqualify a tenderer on rhe grounds that the information ~,bmitted concerning the qualifications of the tenderer were inaccurate o~ incomplete in a non-material respect. (8) Tlle tenderer may however be disqualified for failure to remedy the deficiency• promptly on request by the procurement entity. (9) The procurement entity may require the authentication of a ·foreign document provided by a tenderer to demonstrate the qualification of the tenderer.n Suspension of a supplier or consultant 22A. (I) The Board may suspend a supplier or consultantfrom engaging in any public procurement or disposal process for a period determined by the Board (a) on the recommendation of a procurement entity or after investigations o,i its own initiative; and i·• (b} where .. ' it is determined • . after a .special' audit • . or by . a court, that a tenderer is engaged in corrupt or fraudulent I practices. (2) The suspension of a supplier or consultant by the Board shall occur where • • (a) the supp1ier or consultant is in contravention of a provision in this Act; • (b) the supplier or consultant is debarred from the • •~ • procurement processes of an international agency of which I the Republic of Ghana is a niember; 2-1Inserted (g)ol section8 ol lhePublicPnx:u:rement byparai,aph Ad, 2018(Ad 91·~ (Amendmen0 a lnselledby""'agiep1 (h)01sec:tion 8 ol lhoPublicPtocwemenl(AmendmenQ Ad, 2016(Ad 91()• • l 21 .! ' 1 (c) the supplier or -consultant is found to have a record of • unsatisfactory performance afler investigations by the Auditor-General; i (~ the supplier or consultant fails to substantiallyperform ifs obligations under the contract; • (e) the supplier or consultanJ is suspended by a professional bodyfor professional misconduct; ! (I) the supplier or consultant is found to have faulted on its ' obligations by an Act of Parliament; or 'j (g) the supplier or consultant has been convicted of corrupt j practice or a fraudulent act under this Act. 16 ' proceedings Prequalifica'tion . 23. (I) A procurement entity may engage in prequalification proceedings to identify tenderers who are qualified prior to the submission of tenders. (2) Tenderers for prequalification proceedings shall meet the qualification criteria of the procurement entity and the proceedings shall be conducted pursuant to Parts Four and Five. (3) A 'procurement entity shall supply a set of prequalification docum.ents ~ a supplier or contractor that requests them; and the price that a procurement-entity charges for the prequalification documents shall reflect the cost of printing and provision to suppliers or contractors. (4) Tlie prequalification documents sball include (a/ instructions to prepare and submit prequalification II applications; (b) a summary of the_main teµns and conditions required for the :procurement contract to be entered into as a result of the procurement proceedings; (c) the documentary evidence or any other information !,hat must •be submitted by suppliers or contractors to demonstrate their •qualifications; (df the manner and place for the submission of applications to 'prequalify and the deadline for the submission, expressed as a •specific date and time whlch allows sufficient time for 1 suppliers or contractors to prepare and submit their I. ,. lnsaledby~ 9 ol lho Proa.r!ffillll PIJblic (AmendmenQ Ad, 2016(Ad914). 22 . applications, taking into account the reasonable needs of the . procurement entity; (e), any other requirement that may be established by the 1procurcmeot entity in conformity with this Act and Iprocurement regulations relating.. to the preparation and ; submission of applications to prcquali:fy and to the \ prequali.ficationprocccdi.ngs;and . (/) in proceedings under Part Five, the information required to be specified in the invitation to tender by section 48( I)(a) to (e) and if the information requued under section 48(1)(a) to (e) is already known, the information r,equired under paragraplis (j) . and (k) of section 48(1). ( 5) The procurement entity sbalJrespond to the request by a supplier or contractor for clarification of the prequalification documents if the requ.est is made at least within ten days prior to the deadline for the submission of _applications io prcqualify. (~ The response by the procurement mtity shall b:: given within a period of at least seven working days so as to enable the supplier or contractor to ·make a timely submission of its application to prequalify. ' . . (7) The response to a request that might rcasoi:iablybe expec1ed to be of interest to other suppliers or contmcton shall, without identifying 1he source of'·the 'request; be ~communicated to •oOiersupplier's •or contractors provided with the prequali.ficationdocuments . by the procurement entity. . • Decision on prequalification . 24. (I) Toe procurement entity shall makei-tdecision with respect to the qualification· of each supplier or contractor submitting an application-lo-- -- prequalify ~d i\lreachµig that dec~ion shall ~pply only the ~riteria se~ out in the_prcqualificationdocuments: . : (2) ~~- pr.pc~ment entity shall promptly .notify~each SU{'P4_\ir o--- contractor sqbmitting an application to prequalify of whether or ho~ it ha..--- becn prequaJ,ifiedand_shall make available to any•m~ber of the general public,upqn . • .. ~ucst, I the,names of•the suppliers or • contractors who have : been preqp~.,,. • • "· • , •,•• • • I • .. - ~ '"'"' ... • • ~ ' - .. .. , .. ,V ' .?.. • • . _;{~)~upp)..iers or contracton who have· been prequalified may participate',-.fu,rth.erin the procurement ptoeeediog$, .. ,~ (4) The procurement e_!!ti_ix , ... ,. - . ,- - sball_(!n~_communic;ate:.tO-fY.PPliers.. - or ..contractors who have n<!_tbeen prcquali.fied, the grounds for 23 l .. .... I • ,• • . , .-. disqualification but the procurement entity is not required to specify the evidence or give the reasons for its finding on the grounds. (S) Tlie procurement entity may require a supplier or co.ntractor who has been pr~ualified lo demonstrate its qualifications again in accordance with the same criteria used to prequalify the supplier or contractor. (6) The procurement entity shall disqualify any supplier or contractor who fails to demonstrate its qualification again if requested to do so. (7) The procurement entity shall promptly notify each supplier or contractor requested to demonstrate its qualifications again whether or not th.c supplier br contractor has done so to the satisfaction of the procurement entity. 1 Participation in procurement proceedings 25. Participation· in procurement proceedings shall be on a competitive basis subject to sections 44, 45 and 46 . •• Form of communication 26. (1) A procurement entity shall. when soliciting the participation of a tenderer in procuremenl proceedings, specify (a) theform of the proc11rementproceedings; and (b) measures and requirements needed the protection of classified information procurement . . involved , . to ensure in the • (2) A procurement entity shall only use the means of communication commonly ,qed by a tenderer in a specific type of procurement in the procurement 'process and in any meeting with te_nderershall use means of communicatipn thal ensure thefall participation of tenderers. (3) A proC11remententity shall put in place meOS11resto see11rethe authenticity,: integrity and corrfidenliality of the information used in a 1· procurement process. (4) Communication I between procurement entities and tenderers shall be in writing arid communication in any other forrn shall be refe"ed to and ~on.firmedin writing.11 bysedioo10d 1IMl r, Substiluled PubicProtvremcnt (~ Ad.2016(Act914). 24 Documentaiy evidence in procurement procccilings 27. The documentary evidence required in procurement proceedings shall 1 comply with the Evidence Act, 1975 (N.R.C.D. 323). Record of p~ocurcmcnt proceedings 28. (1) A procurement entity shall maintain a record of the procurement proceedings ~ntaining, (a)l1a brief description ,of the goods, works or services to be procured, or of the procurement need for which . the procurement entity invited proposals or offers; (b/ the names and addresses of suppliers or contractors that 1submitted tenders, proposals, offers or quotations, and the \name and address of the supplier or contractor with whom the , procurement contract is entered; (ci information relating to the qualifications, or lack of •qualifications of suppliers or contractors that submitted tenders, proposals, offers or quotations; (d) the price, or the basis for determining the price and a summary 'of the other principal terms and conditions of each tender, proposal, offer or quotation and of the procurement contract if 1 , these are known to the procurement entity; (eha summary of the evaluation and comparison of. tenders, j.proposals under section 69, offers or quotations including the : application of any margin of preference pursuant to section 60; (/) : if the tenders, pf<?posals,offers or quotations were rejected, a , . , . .:~temc~t to that effect and the grounds for the rejection; (g) if, in procurement proceedings ioyolving methods of jprocurement other than tendering, those proceeding~ did not result in a procurement contract, a statement to that effect and ' the reasons; • • • • I ' , (h)\~~ .informatio~ re<Juired._under s~!i?n 2~, if,a t~~de~i.p~9po5'¼1, . ,offeror ~uota(lon was l'eJecte;d.~ursuantto,tJ¥tt prov1s!on; , . . (i) la statement of the. grounds and circumstances on -which the PFOcuremententity relied to j\lstify-the-selection-of the-metho.d--- lof.piocuremeot used; ' ' ..~ ; ' (j) in the pi:ocurement of, services by means of Part Four, the statement required under sec~ion 7\. of the gro'-!°ds-and - •• 25 circumstances oo which the procurement entity relied to justify •the selection procedure used; (k), in procurement prQCecdings involving direct invitation of •proposals for services in accordance with section 63 (3), a i statement of the grounds and circumstances on which the •procurement entity relied to justify Lbedirect invitation; ! (1) in procurement proceedings in which the procurement entity, 'in accordance wifh section 2528, limits pai-tjcipation on the \ basis of nationality, a statement of the grounds and 'circumstances relied upon by the procurement entity for the 1 limitation·, (m) a summary of any requests for clarification of the prequalification or invitation documents, the responses received as well as a summary of any modification of the . documents; (n) a record of any complaints received from suppliers, contractors •or consultants and the responses received; (o)p statement of the reasons and circiimstances relied on by the Iprocurement entity when the procurement is cancelled, staling •the reasons a11dcircumstances relied on by the procurement , entity for its decision to cancel the procurement; (p) the.reasons and circumstances for whi~h a procuremenl entity , rejected a tender or consultancy proposal; (q) any socio-economic policies consiekred· in the procurement proceedings, details of the policies and the manner in which they were applied; (r) a copy of the review proceedings where a complaint i's : submitted to the procurement entity; (s) where a system other than competitive tendering has been - I used, the reasons and circumstances the procurement entity 1considered when selecting the other procurement method; (t), the reasons and circwnstances relied on by a procurement • entity when a tenderer is excluded1 from procurement proceedings; (u) a statement where the award of a procurement contract is as a 21 Substiluled (a)otsoc:tlon byparagraph 11ofthePublicProcuremenl Acl.2016(Act914). (Amendmenl) 26 ;' result of the failure of the previous tenderer to sign the ;procurement contract or provide the required security for the : performance of the contract; (v). the reasons and circumstances relied on by a procurement i entity where confidentiality in the procurement proceedings is I required; (w) tfie requ/rements im~sed on tenderers for the. protection of classified information in a procurement process; ' (:r) a statement of the reasons and circumstances used to justify theframework agreement process where applicable; and {y),any other infom,ation required to be included in the record by a procurement entity in furtherance of the procurement lprocess.19 • (2) Subject to section 51 (2), the portion of the record referred to in subsection (i)(a) and (b) shall, o.n request, be made available to a person after a tender, proposal, offer or quotation bas been accepted or after procurement. proceedings have been tenninated without resulting in a -pr<?curement_contract. (3) Subject to section 51 (2), the portion of the record referred to in paragraphs (c) to (g) and (m) of subsection (1) shall, on request, be made available to suppliers, contractors or consultants that submitted tenders, proposals, offers or quotatio.ns,or applied for prequalification after a tender, proposal, o£I:eror quotation bas been accepted or procurement proceedings have been terminated without resulting in a procurement contract t (4) Disclosure of the po.rtion of the record referred to in subsections (1) (c) to (e): and (l)(m), may be ordered at an earlier stage by a competent court.30 : • 4' (4A) procurement entity shall not disclose the portion of the record referred lo in subsection (1) (c) to (e), (1)and (m) or informaJionthat relates to the exaini;,ation, evaliiation·and comfarisoh ·offend~s. JK<iposals,offers or quotatio~ and tenders, proposals, offers or quotation prices other than the summary referred to in subsection (I) (e) if • '((l) non-disclosure of the ·information is necessary for the protection of essential security interests of the State; or (b) disclosure of the information would he contrary to law and . ?'Insertedbj pa,ag,aph(b)ofsection 11oflhe Plt!ific :,aAmeooed byparjlgraph Procurement . ,e'"'il)Act.2016(Act91'). (Am-e""idl (c)ofsedkln11oflhePubicProcurement ... Act.2016(Ad 914)by lhe (Amendment) deletion of a1 words after'court". • 27 would (i) impede law enforcement, (ii) not be in the public interest; (iii) prejudice the legitimate commercial interests of the tenderer or consultant; and. (iv) inhibit fair competition· as provided under the Protection Against Unfair Competition Act, 2000 {A.ct ! 589), unless the disclosure. is ordered-by a court or the Board in -which case·the • procurement\entity shall comply with the conditions of tlie order.31 (S) Tue· procurement entity is not liable to tcnderers for damages owing solely1to a failure to maintain a record of the procurement proceedings in accordance with this section. (6) Records and documents maintained by procurement entities on procurementl shall be made available for inspection by the Board, an investigator appointed by the Board and 1he Auditor-General on-request; and .. ~here donor'.fuods have been used for the procurement, donor officials shall also -on request to the Minister have access to relevant proci:rtement1i!es for putposes of ,,;erification and review. (7) A ~rocurement entity shall record,file and preserve the documents that relate to the procuremttnt proceedings, Regulations and the Public Records aml~rchives'A.dministtation Act, 1997 (Act 535).31 ' of procuie_n:ient Cancellatio·~ proceedings,.,•' 28A. (l)'. A procµr;~~nf__~~~~-r11~;,_.jgr,sp~9.ifJ~~-Cl~4 Juii;,._J.¥Stified reasons, cani;el procurernentproceedings be/ore the' expiry of the deadline for Jhe submission of ten4ers, _where . . . . .. . .: ' • -•1ra) the ·enti'tj,disco.vers pn)mperfectfon in th~wordihg of the • - ~ '· .1, ;''"' . r,e_tf.~es~_for 0 /1ibmission.'0[ t~~ciefs,:,~hich. cou{d _,!!1/!!ead ' . ,.. -~te'riderers· ' .......... ,. ',L~ -- ;\ ... •. --... , .. • (b)" rhe 'P.r~~reinent entity decides. io • carry" out the: work· ·' ; subject of the tenderbyitself; • • t '(c) there is a cut Jn the·:budgei intended for. perfotining the . l _•• ~ ; contract; ' ·- ·,. -.-·•" ., rc0 no bid has been ·submitted; ., ri~ i~ d (d) ~ectiori "'lnser.edbyparagraph Act.2010{Aci 11ol lhePublicProcureriienr(Arti~merit) (c) of section11oflhePublicPrOC1KemenI{AmcndmcJitJ-Acl,2016 914).• - (Act914). 28 ..·. .. ' ' {e) exceptional circwnstances or a force majeure render normal performance of the contract impossible; 'p>_ the economic or technical ¢ata of. the project has fundam(!1Jtallychanged. - 'I (2) "fl'hehead of a procurement entity may, after the· expiry of the deadline for /.the submission of tenders, caricel a procurement proceeding wher~ i . •. , : ~-... . • . (a) no tender has been submitted within the specified deadline; ''fb) the tender proce<furehas been unsuccessful; (c) it is established that the tender documents contain terms or technical specifications that ca1111ot be met by GnY.of the , tenderers or that these specifications lead exclusively to a ; specific economic operator; h~ the prices of the tenders that meet the terms and the technical requirements of the tender documents are unrealistic or appear 'to be the product of collusion --------~-1 • between the tenderers, resulting in the circumvention _of • •.- ' . ' healthy competition; •fe) the circumstances under which the procurement procedure ! was announced have .changed_to such an extent that the !- scope of the tender pro_cedw:.eis no lo!Jgernecessqry; (j) exceptional circumstances or a force majeure render normal performance of the;contract imposs_ible;or . '.(g) any other serious llnforeseeable reason, which the j. procurement entity considersjustlfiable, applies. (3) if,e. head of a procyrement _entity sha![, .before cancell;-,:iga procurement proceeding llnder subsection (2) have <fue regard to ~(a) the time and resources expended by interested tenderers, I particularly in the case· of ·complex contracts. with ·a t, complicated scope; l(b) the right of ar(interesfed party who has· or had an -interest !· in being cr.varded the specific 'coiztrtict, and i~ho has- ! sustained or is likely to sustain a loss as a re's~lt of the cancellation, to seek administrative review under thi~_Act or.to seek redress in court; and 29 ! {c) general principles of good faith and transparency and I public policy. j (4) t4procurement entity may cancel procurement proceedings after acceptdnce of a successful tender if the tenderer whose submission has been accepted, fails to sign the applicable conlract as required or ' the applicable security required for performance of the fails to provide contract. (5) Silbject to subsection (3), where ,a procurement proceeding is cancelled beJore the contract is signed, a tenderer or interested party shall not be :entitled to claim any compensation from the procurement entity. (6) !For the avoidance of doubt, a procurement entity shall not incur liability for invoking this section and shall in no event be liable for any damages. including, damages for loss of profits in any way connected with the cat~e/lation of a tender. ' (7) i'.11iepublication of a tender notice does not commit the procurement entity that published the notice to implement the programme or project announced (8) Subject to this section, where a tender proceeding divides tenders into lots, individual lots may be cancelled (9) . The decision of a procureme~t •eniity ;o cancel the procuremeruiand reasons for that decision shall be incl_uded~nthe ~'ecord of procurem nt proceedings and shall be promptly commumcated to any 1 tenderer or COflSl;!tan't who presented a tender orproposal. •• • • (J()) A carice/lation notice shall promptly. after decis~n to ca11Celis mdte, be published on the website of the proc11re1!'/ntentity or of the 1,u1h9rjty. . . . . . (I J) After cancelling a procurement proceeding, the . procurement en/lty may : (a) start a new tender proceeding; or {b) re-start the tender proceeding using the same reference as • • •· • the original invitalion.33 • • "ln,,"Ml!d ' 12ollheP\JblicProcuretoont by5"Ctlpn Act,2016(Act914~ (Amendment) 30 Rejection of te.nders,proposals and quotations 29. (I) A procurement entity may reject tenders, proposals and quotations at any time prior to acceptance if the grounds for the rejection are specified in the tender documents j or in the request for proposals or quotations. (2) The grounds for rejection shall be communicated to the tenderer but justification for the rejection is not required and the procurement entity ' • . shall not incl!Iliability towards the tenderer. • . : • (3)Nqtic~ of the rejection shall be given to participating tenderers within two dliys from the date the procurement entity decides to discontinue with the tenclflrprocess. (4) If ~e decision to reject tenders is taken before the closing date, tenders received shall be returned unopened to the tenderers submitting them. (5) The rejection of the tender, proposal, offer or quotation with reasons shall be recorded in the procurement proceedings and promptly communicated to the supplier or contractor. ~ - - - Entry into force of the procurement contract 30. (1) In (ender proceedings, acceptance of the tender and entry into force of the .procll{cmentcontract shall be carried out in accordance with section 65. • • • , , (2) ln,the other methods of procurement, the manner of.entry into force of the1procurement contract shall . be notified to the suppliers or contractors 4th~ time those proposals, offers or quotations are requested. Public notic~ of procurement contract awards 31. (J) A procurement entity shall promptly publish notice of procurement contract awards on the website of the Authority. 34 • • • (2) The Regulations shall provide for an! other manner of publication of the notice of procurement contract awards. 1 Inducements from suppliers, contracfors and consultants • • • 32, A pro¢urement entity shall reject a·tender, ·proposal, an offer or a quotation if lhc supplier, contractor or consultl!nt that submitted it offers, gives or agrees to give, directly or indirectly, to a current or former•officer or employee of the procurement enti1yor other governmental authority, "ln_½rtedby'~ (a)of sec:llori 13.oflhePublicProcurml iAnvindmenQ Aa,2016(Ad914). by'~raph (bl ofsection13orlhePubllc ,s &JbsUwied Prorurement >.a,2016(Act914). (Amendment) • 31 (a). a gratuity in any form; (b) an offer of employment; or (c)' any other thing of service or value, as an inducement with respect to anything connected with a procurement entity and pr9curement prnceedings. Confidentiality 32A. (]) 4 procurement entity shall not disclose information to a supplier or contracto'r if the· disclosure will compromise national security or if the disclosure will impede law enforcement, prejudice the legitimate commercial interest of a supplier or contractor, or impedefair competition. (2) A procurement entity shall treat applications to pre-qualify, applications for pre-selection and submissionsfor a procurement contract in a manner that avoids the disclosure of /heir contents to a competing tenderer or aey unauthorised person, except as provided under this Act. (3) •A discussion or communication permitted under this Act between a p~ocurement entity and a tenderer during the tender process or _ !!_theryrocl.l[ement process that_ permits_ discussions, negotiations or dialogue at any stage, is confidential and, zn1lessrequired by law or ordered by a court, aperson- concerned with the discussion or communication shall not disclose qny technical information, price or other information to another person withoµt the consent of the other party. (4) A person concerned with the discussion or commUflicationin a procurement process shall not disclose tll1)' technical•information, price or other information to another person without the consent of the other party. (5) A person who contravenes subsections (3) or (4) commits an offence. - (6) Subject to section 28 (4), a procurement entity involved in classified inf9rmation may • • 1(a) impose requirements on tenderers to protect classified information;·and (b) demand that renderers ensure that their subcontractors ¼ comply with the requirements to· protect classified 36 ; information. . . ' "tnsetled by sedion 1◄ ol tile PubrloProcuremenl M.. 2016(Ad914). (Amendment) 32 I ' Description ~f goods, works antf 1 services 33. (l) Th~ (a)j•specifications,plans, drawings and designs .that provide the technical or quality characteristics of goods, works, or servic•=----- 1to be procured, /o),requirements on testings and test methods, packaging, •marketing, labelling or conformity certifications, and (c) symbols and terminology description of goods, worfcs arut" •services that ere.ate obstacles to participation including ;obstacles based on nationality oftenderers, 39 shall not be included or used in prequalification documents, invitation documents ~r any other documents for invitation of proposals, offers or quotations. ' • (2) The provisions in subsection (1) shall be based on objective technical anq quality characteristics of the goods, works or-services to be procured and there shall be ·no requirement of or reference to a particular -~de mark, ~ame, patent, design, type, specific origin or producer, unless a precise or intelJigible way of describing the characteristics of tb.e goods, •works or seryices to be procured does not exist, in which case, 1hewords "or equivalent'' shall be included. •··a ••• •(3) Standardised features, requirements, symbols and terminology relating to the. technical, quality and performance characteristics of the . goods, works', or services to b·eprocured'shall be useil,~where·{11/Qili:Jble, ':to formulate any specifications,plans, drawings and designs to be included in the pre 7quruiftcation {ll}cumenls, invitation {ll}cuments or any other documentsfo{'im,itatiqn of proposals,.offer.-0r,quotations. , , . J {4) Aj procurement entity shall pay "due regard· to the' use, of i standardised·trade terms and standardised condilionr.vherrF<wlliklbl~n4h•e---i-' - formulation if the terms and con'ditions-oftheprocureinent;-theprocurement--~ toiltract; '-the•0 framework ··agreement,• pre-qualification; pre-;re/ectio11 agreemems ilnd·the ·tender·doeiiments. •.~• • .:, ' • ••• -:--. :• ' • • :,. ,•r:• • .: ' • ·),' ,.... .. ... , ~~ .: \-;• '.~t-- ~ sbtisfiMed6y'paragrapil (aJa sec11ai,fs tirihePublicProcurement(Amendmen\1 Ac1.2016(Al$9UJ.:..·, . .Ja,!nse(tedby~ph_(b) a section 15of lhePublic_PmaJ,ecnenl(Amendment) Acl.2016(Act 911),·,.. •, a, " lnsooed.by~raph (b)a section15of lhe Pubr,c: PIOaJrl!fnelll (Amendment)fltJ.2016(Ad9.14). •• Substitutedby paragmph(c)llf·sedfon15d lhe·Publlc Pn:x:unlmcot 2016(Ad 914). ·, • (Ame1odmel1~·Ad; -••' .__ \(j•' \ ' •• ... ,l., _. ':0 •• • ,. 1 ....... r4.• '.' _. 'l • ~• 33 Language , 34. The prequali:fication documents, invitation documents and other documents for invitation of proposals, offers or quotations shall be in English. PARTFOUR Methods of Procuremeni Methods of ;,rocuremmt and conefitions of use, including franiework contracJing ; 34A. (I) The procurement entity may conduct procurement by means of the following methods and as from time to time determined by Regulations: (aj competitive tendering that includes; ' (i) international ·competitivetendering, : (ii) national competitive tendering, • (lii) request for quotations, and (rv)restricted tendering; {b) single source procurement; (c) sekction of conszdtantsdetermined by (i) quality and cost based selection, (ii) quality based selection, (iii) selection based on consultant's qualification, (rv) least cost selection, , (v)feed budget selection, and '. (vi) single source selection; and (d) framework contracting where i (i) the Board in consultatian with the Minister, mayintroduce '!.framework contracting agreements and other nzethodsfor any : specific entity whete the context permits until it is possible to ·do so nationally; and • • _ , F • - • , . .. - '(i.i)a procurement entity may engage in a framework agree- -· • ment procedure in accordance with regulations or guidelines issued by the Board •• {2) These :me/hods shall be used subject to and in accordance with the thresholds sJi.ecifiedin ·the Fifth Schedule.fl I •• lmetledbysection16ol lhel'\JbicProcuerren1 (AmendmellQ Aa, 2016(Aa 914). 34 Competitive tende.ring 35. (I) A procurement entity shall procure goods, services or works by competitive tendering except as provided in this Part. (2) Atprocurement entity shall use the quality and cost-based method of selection !11Part Six when selecting consultants .unless the procurement entity det.enn.inesthat (a)· it is feasible to formulate detailed specifications and tendering proceedings or other methods of procurement which are more appropriate talcinginto account tho nature of the services to be ; procured; or (b) it is more appropriate to use a method of selection refer;rcdto in Part Six if the conditions for the use of that method are satisfied. (3) If the procurement entity uses the method of procurement other than competitive tendering, it shall include in the record required a statement of the grounds nod circumstances on which it relied to justify the use of that • method. l\vo-stage tendering 36. (I) A procurement entity shall engage in procurement by two-stage tendering (a) where it is not feasible for the procurement entity to formulate detailed specifications for the goods or works or, in the case of . services, to identify their characteristics and wheic ii seeks tenders, proposals or offers on various means of meeting its needs in order io obtain the most satisfactory solution to its procurement needs; or where the i:baracter of the goods or works are subject to rapid technological advances; (b) where the procurement entity seeks to enter into a contract for 1research, experiment. study or development. except where-tbeie--- contract includes the production· of goods in ·sufficient I' quantities to esfablish their commercial • -viability or to recover •research and development costs. • frocedur.cs ~or two-stage tendering . • . _ ,· 31. (I) The provisions of Part Five shall apply to two-stage tendering proceedings except to the extent that those provisions vary from this section. _(2)~e invitation documents 35 (a) shall call upon suppliers or contractors to submit, in the first Istage of two.stage tendering proceedings, initial tenders which •contain their proposals without a tender price; (b/ may solicit proposals that relate to technical, quality or other •characteristics of the goods, works or services as well as contractual terms and conditions of supply and may stipulate •the professional and technical competence and qualifications of the suppliers or contractors. (3) The procurement entity may, in the first smge, engage in negotiations with a.supplier or contractor whose tender has not been rejected under sectio~ 29, 32 or 62 (6) with respect to an aspect of its tender. {4) In the-second stage of the two tender proceedings the procurement entity 1 (a/ shall invite suppliers or contractors whose tenders have not / been rejected to submit final tenders with prices on a single set 1of specifications; (b) may in formulating the specifications, delete or modify an •aspect of the technical or quality characteristics of the goods, works or services to be procured together with the criterion originally set out in those documents, evaluate and compare tenders and ascertain the successful tender; (c) may add new characteristics or criteria that conform with this , Act.; (d) shall communicate to suppliers or contractors in the invitation • to submit .finaltenders, a deletion, modification or an addition; (e)tmay permit ·a supplier or contractor who does not wish to ! submit a final tender to withdraw from the tendering proceedings without the supplier or contactor forfeiting the ! tender. security that the supplier or contractor may have been • 'required to provide. (S) ~e final tenders shall be evaluated and compared in- order to ascertain the successful tender as defined in section 59 (3)(b). 36 Restricted tendering 38. (1)'1 A procurement entity may for reasons of economy and efficiency and subject to the approval of the Board engage in procurement by means of restricted t.cndcring (a) if by reason of the highly complex and specialised natrue0 goods, works or services are available only from a limited number of suppliers or contractors; (b) if the time and cost required to examine and evaluate a large number of tenders is disproportionate to the value of the goods, 1works or services to be procured; or 1 (c)l if an offer for competitive tendering fails to receive any response after publicaJion.44 (2) The Authority may charge a processing fee as de/ermined by the Board/or single source and restricJed tendering applications.' 5 Procedure for restricted tendering 39. (1) \Vhere a procurement entity engages in restricted tendering on the grounds referred to in section 38 (a), it shall (a) invite lenders from the suppliers and contractors who can , provide the goods, works or services; (b) select in a non-discriminatory manner, a number of Sl!Jlpliersor 'cootrnctonto cDSl!rC effectivecoinll¢lilion. (2) \Vhere the procurement entity engages in restricted tendering, it shall publis~ a notice of the selective-tendering aw8!'(1 io the Public Procurement .Bulletin. (3) The provisions of Part Five but not section 47, sbalJ apply to selective tendering proceedi11gs,except to the extent that those proyisioos arc varied in this section. Single-source procurement 40. (1) A procurement entity may engage in single-source procurement under section 41 with the approval of the Board in the following exceptional • circumstances, " o ~by~ (b)d sedlon17d IllePldc l'loaremonl (Amal1dme1~) Ad,2016(Ad914~ <>lr-10d by~ (a)d sedlon17d IllePubic (Amenctnel,0 Fn:x:\nmefit Ad, 2016(Ad914). "lr-10d bypaagiapi(c)d sedion17d Ille Pldc Pnlanmenl (Amendnle,,I) Ad, 2016(Ad 914~ u lnsertlld (d)d scdb'l17dlhe Public bypa,19131)11 Procuruncinl Ad, 2016(Ad914) (Ameoctnent) . .. "-1ad brparag, (a)d sedbl 18d lhePublic 31)11 (Amelldmenl) PToa.wernenl Ad, 2016(Ad914). 37 (a) where goods, works or services arc only available from a particular supplier or contractor, or if a particular supplier or •.contractor has exclusive rights in respect of the goods, works •or services, and a reasonable altemali vc or substitute docs not •exist; (b), where·there is an urgent need for the goods, works or services tand engaging in tender proceedings or any other method-of , procurement is impractical due to unforeseeable circumstances ; giving rise to the urgency which is not the result of dilatory , 'conduct on the part of the procurement entity; (c) where owing to a catastrophic event, there is an ur.gentneed for the goods, works or technical services, making it impractical to 'use any other methods of procurement because of the time involved in using those methods; (d/ where the procurement entity having procured goods, equipment, technology or services from a supplier, contract(Jr •or consultant, determines that additiona( supplies must be .procured from the supplier, corifractor or consultant b'ecause iof standardisation or compatibility with existing goods, requipment, technology or services taking into account (i) the effectiveness of the original procurement in • meeting the needs of the procurement entity; .', (ii) the limited size of, the .proposed procurement • in relation to the originalprocurement; ~ -(iii) the reasonableness of the price; and ,, · 1• (iv) the unsuitability of alternatives to tlze goods·or servicef/ in question:17 • • ·: • (e) •wht;re the procurement entity ·seeks to enter into a con'!raot.with ~.the S\lpplier or..:contraGter...for-r-esearch, experiment, study-or--- development, except where 'the ., contract •:includes· the , prouuction of ,goods in quantities to •establish 'COJii.lilercial :viability or recover research arid developmerit·costs;,or , (I) ; where the procurement entity applies this Act for procurement- , ;'that concerns national security, and ·deteanities that single- source procurement is the most appropriate method of , procurement. "Substitutedbyparagraph .. (b)of secGon ' . 18orthoPublicProcurement . (Aml!ndment) . Act,2016·{Acl 914). • 38 ' • ,, (2) A. procurement entity may engage in ~ingle-source procurement with the app,roval of the Board iµler public n9tice and time for comment where procurement from a particular supplier br contractor is necessary in ' order to protjiote a policy specified in sectibn 59(4)(c), (d) or' 69(2)(c)(i) or socio-economic policy 48 and procurement from another supplier or contractor cannot prom9te that policy. • , • Procedurefor'singlc-sou~ccprocurement "· ••, 41. The p~ocurement entity may procure the goods, works or technical services by inviting a proposal .or price quotation from a single supplier or contractor urlder section 40. • Requestfor ~uotations 42. (J/ 9 J\ procurement entity may engage in procurement by requesting quotations in'.accordance with section 43, (a)' for readily available goods, work.s50 or technical services that !are not specially produced or provided to the particular !specifications of the procurement entity; and • •• (b)•for goods where there is an established market if the estimated value of the procurement contract is less than the amount in the Fifth Schedule.51 •(2) The successful quotation shall be the lowest evaluated responsive quotation that meets the needs of the procurement entity in the request for . 9uotations.521 1. . • • .. Procedurer4r request for quotation 43. (1) Thf procurement entity shall request for quotations from as many s11ppliersor ,contractors as practicable, but shall compare q11otationsfrom at least three different sources that should not be related in terms of ownership, lhateho/ding or directorship and the principles of conflict of inter~st s~aff.:applypetween the procurement ~ntitie'sand their member'sand the different price quotation sources.53 •• (2) A supplier or contractor from whotn a quotation is requested shall be'infonned 'whether the elements, apart from 'the charges for the' goods or I ' 1 Inserted byparag,aph (c)ofsection18ofthePublicProcurement (AmendmenQ Ad, 2016(Act914). • 1 Renumberedbyparagraph (b)ofsection19oflhePublicProcurement (Amendment) Act.2016(Act914). 50 Inserted byparagraph (a)of sectlon 19oflhePublicProcuremoot (Amendtnoot) Act,2016(Act914). f 1 Substituted byparagraph (c)ofsecUon19ofthePubOc Procurement Ad.2016(Act914). (Amendment) 62 Added (d)'ofsection' byparagraph 19ofthePublicProcurement (Amendment) Act,2016(Act914). u Subslltuted bysectlon 20ofthePIJbllc Procuremenl (Amendment) Act,2016(Act914). • I 39 servioes themselves, such as transportation and insurance charges, customs duties and taxes, are to be included in the price. (3) A supplier or contractor shall only give o.ne price quotation and shall not change its quotation; (4) Negotiations shall not take place between the procurement entity and a supplier or contractor with respect to a quotation submitted by the supplier or contractor, prior to evaluation of bids. PARTFIJIE TenderingProcedures Invitation of Tenders and Applications to Prequalify • National competitive tendering 44. (1) Locally registered suppliers, contractors or consultants may participate in national competitive tendering procurement proceedings without regard to nationality, except where the procurement entity decides to limit participation in national competitive tenderirrgproceedings to only domestic suppliers, contraclors or consultanls, in accordance witlf this section. (2) In procurement proceedings in which the procurement enJity decides that only do,h~tfc suppliers, contractors or consultants may submit tenders, the procurement entity shall employ national competitive tendering procedures. , •.. (3) A pro_,curement entity is 1101required to employ the procedures set out in sectfons 47 and 48 if the estimated contract amc,unt is· lowef than the valu~ thr~shqfd~pecified if1tfae_ Pifth Sche1ule. (4) A procurement entity, when first calling for participation in procuremen1:proceedings, shall hotify p~ospective tenderers whether the proceedings are limited to domestic suppliers only and the declaration shall not be altered later. ' (5) A procurement entity that decides to limit the participation of suppliers, '?')lltractorsand consultants in procurement proceedings, shall include in the 'record of procurement proceedings, a statement of tht: reasons and circumstances on whiql, it relied and shall m~e available to any . p~rspn,·• on reqµest, its reasonsfor , . limiting ' participati9n., . (6) A prf?~ement entity may stipulate in the, ,tender documents that : Jenderers must ·ql!oteonly in the local currency and payments must be made wholly in the local currency. • • 40 (7) A procurement entity shall stipulate a minimum period of two weeks or a maximtfm period of six weeks for the submission of tenders under the national conipetitive tender procedures.54 'lntcrrlatlon➔l competitive tendering 45. (l) International competitive tendering shall be used whenever open competitive tendering is used and effective competition cannot be obtained unless foreigri firmsare invited to tender. • (2) O~en international tendering shali be in ac~ordance witJ1Part Four and Part Fiv~ and the following shall also apply: , (a) the invitation to tender and tender documents must be in English, subject to sections 34 and S2; (b) the invitation to tender shall be placed in a newspaper with adequate circulation to attract foreign competition as provided : under section 47; ' (c)jat least six weeks shall be allowed for submission of tenders ·in 'order to allow sufficient time for the invitation to reach ., : candidates and to etiable them to prepare and suomit the 1tenders as provided in section 53; .(d))tecbrucal specifica.tions shall, to the extent compatible with lnational requirements, be based on international standards or 1standards widely used in international trade and in particular {shall conform to the provisions of sections 33 and 50(3); (e) tenderers are permitted to express their tenders, as well as any security documents to be presented by them, in freely convertible currency and stated in the tender documents, j subject I(?section soq)~d secti_on5~(2)(~).;and .. (I) igeneral and special conditions of contract as stated in the I tender documents. Other interJational procedures . 46. Part Ft>ur and Part Five shall apply with the modifications -that are necessary wtlenever effective competition cannot be obtained unless foreign '1• ) 54 '' . Substituted bys~tlo_n 21of thoPublicProcure'l)Onl (An)endmonl) Act,2016(Act914), 41 finns are inyited to participate in procedures apan from open competitive intemational;tendering such as selective tendering or invitation for proposals. •I Procedures for inviting tenders or applications to prequalify 47. (/) A P[Oc11remententity shall invite renders or, where applicable, applications 10 preq11alifyl,y causing an invitation to render or an invitation to prequa/ify; to be published in the Public Procurement Bulletin and on the website of the Authority. (2) An in~itation to tender or prequa/ify shall be published in at least one daily newspaper of national circulation. (3) The invitation may also be published in a newspaper of wide international. circulation, In a relevant trade publication ar a technical or professional journal of wide international circularion. (4) The ihvitation shall be published on the website of the A11tl:orityat a fee to be dettrmined by the Board. 55 i Contents of invitation to tender and invitation to prcqualify 48. (l) The' invitation lO tender shall contain (a) the name and address of the procurement entity; (b) the nature, quantity and place of delivery of the goods to be •supplied, the country of origin, the nature and location of the works to be effected or the nature of the technical services and the location where they are to be provide~; (c) the desired or required time for the supply of the goods or for , the ¢0mpletion of the works, or the timetable for the provision ; of lhe services; (d)' the criteria and procedures to be used to evaluate the }qualifications of suppliers or contract9rs, in confonnity with Jsection23; • (e) a declaration, which may not be subsequently altered that suppliers or contractors may participate in the procurement iproceedings regardl\:,SSof nationality, or a declaration that •participation is limited on the basis of nationality under section 25; ss &lbsliMcdby section22 d IllePIJt,(',c l'tocurffl,enl Act,2016(Act914). (Amendlnel\t) 42 (I) the means of obtaining the invitation documents and the place from where they may be obtained; ) (g) the price, charged by the proclll1;1Dententity for the invitation documents; (h,rthe currency and means of. payment· for .the invitation •• documents; (i) •the language in which the invitation documents are available; (j) the place and deadline for the submission of tenders; (k) lhe place, date and time for the opening-ofbicls; and (I) 1 ; any other information considered relevant. • • . (2) Ali invilllti.onto prequalify shall contain the information referred to in subsection (l)(a) to (e): (g), (11}and, if the infoi:mation required under those paragnipbs is already known, contain the information required under subsection (1) (j), as well as the following information regarding (a) the means to obtain lhe pre~ualification documents and lhe •place from where-they can be obtained; • • • (b) the price charged by the procurement entity for the pre- - qualification dociwents; • - ••• (c) the currency and terms of payment for the pro-qualification documents; • (d).the language in which the pre~ualification documents are ·•available· • • .... •• -· • (e)'the-place and deadline for the submission of applications to ;prequalify and the time allowed for the preparation of pre- • 'qualification applications shall not be less than four weeks. .Provision of tender docnments 49. (1) The procurement entity shall .provide the_ fen'der documents-to· suppliers or contractors in accordance with the procedures and requirements specified i!!the)nvjtation to tender-, • • -. ._. • ~ (2) If pre-:<J.llillifi!)ation proceedingShav.e taketi:place, th~~ent.-- entity shall provide a set of tendt;r documents to eai:p supplier or 'i;oniraclor , thaCbas befu prequalified and that pays. th~, price: charged.Jfor ibosc., documents. l . •• • -- : • - .. :- •~ - •• •"':~ • .... ., • -•' - - - ~ J•. (3)°Th~-price-that the procurement enti:trmay--charge for tlie tendeiei== documents. sheJlreflect the cost of printing. ihem. and providing them ~ .. suppliers or cpntractors. •· ' • ••• ' 43 (4) Where electronic procurement procedures are applied, the price of tender documents shall be determined by the Board.S6 Contents of tender documents and use of standard tender documents SO.(l) Pro'curement entities shall use the appropriate standard tender documents sppulatC9 in the Sixth Schedule 51 with the minimum changes acceptable to the Board. (2) Cltanges shall be introduced only through tender or contract data sheets, or tqrough special conditions of contract and not by introducing changes in tJ.testandard tender documents. (3) The invitation documents shall include, (a) instructions for preparing tenders; (b), the criteria and procedures, in conformity with the provisions . of section 22, for the evaluation of the qualifications of suppliers or contractors; (c) the requirements on additional documentary evidence or other information that is to be submitted by suppliers or contractors to demonstrate their qualifications; (d) the nature and required technical and quality characteristics, in ',relation to the goods, works or technical services to be procured under section 33 including, but not lµnited to, (i) the technical specifications, plans, drawings and designs, (ii) the quantity of tbe goods; (iii) the incidental services to be performed; [xv) the location where the works are to be efrected or the services are to be provided; and • (v) the desired or required time, when the goods. arc to.-be delivered, the construction is to be effected or the services are to be _provided; (e)!the criteria to be used liYthe procurement entity to determine fthe su~ssful t~nder, including the margin of preference and Hhe criteria other than price to be used under section 59(4)(b), : (c) or (d), and the factors apart from price to be used to determine the lowest evaluated bid, shall, to the extent "Addedbysection23of thePublicProc:uremenl (Amendmenf) AtJ,2016(Ad 914), 51 Substi11J1ed byparagraph (a)of sectlon24 ofthePublicPrOCllremenJ Act,2016(Act914). (Amendment) 44 ) practicable, be expressed in monetary terms, or given a relative ! weight in the evaluation provisions in the .tender documents; (/) t the terms and conditions of the procurement contract and the contract form to ~ signed by the parties; (g). a statement that the characteristics of the goods, works or services, contractual terms and conditions or other :requirements set out in the invitation documents are permitted, '· and a description of the manner in which alternative tenders are 1 to be evaluated and compared; (h) a description of the portion or portions for which tenders may ' be submitted where suppliers or contractors are permitted to submit tenders for only a portion of the goods, works or , services to be procured; (i) •the manner in which the tender price is to be formulated and expressed, including a statement whether the price cove.rs elements apart from the goods, works or services, such as \ applicable transportation and insurance charges, customs duties - ..and taices; (j) ' the currency or currencies in which the tender price is to be formulated and expressed; (k) the language in conformity with section 52, in which tenders are to be prepared; (l) the.requirements of . , , : . ,. .., ,,.. ,... (i) the p~oc~~ment entity. cpnnect<:<J~th ~e issu~, nature, ionn, amount and other. prinG)pal t~rm~ 1Wd condit,ions of ,tender, secqrj.iy t1>.. qe p.roy~ded-,,by. i ,.. su,11pliersor contractors s~bmitting ten.g_ers;~d , , . . . l. .(ii) sec,urity for the, performance of the procurement : , ~i ,• .•• contract to beprovided by a.supplier or con~4&lorthat 1, enters into 'the procuremen( contract; .including I ' ·securities such as' Jabour-andmaterials'bonds; ' (mJa •~tl!t~me;t .that a supplier or' •co;tractor' ~an modify or withdraw its tender prior to·the deadline for the sub~ssion of. ,te1?der-, with~4t forfeiting its te!¥1(:rsecurity; • . (n)"the manner, place and deaclline.forthe.submission of tenders;., (o) tbe means by which suppliers or contractors-may-seek-- clarificatlon of .the invitation documents and a statement •• 45 • I I • .whether the procurement entity intends to convene a meeting :of suppliers or contractors; (p) the period of time during which tenders will be in effect; (q) the place, date and time for the opening of tenders; (r): the procedures lo be followed for opening and examining : tenders; (s) •the currency that will be used to evaluate and, compare tenders •1 under section 58 and the exchange rate that mil' be used for the ; conversion of lenders into that currency or a statement that the ,I rate published by a specified financial institution prevailing on 'a specified date will be used; ! (t) references to this Act, the procurement regulations and other lI Acts and regulations relevant' to the procurement proceedings, i but the omission of the reference shall not constitute grounds for review under Part Seven or give rise to liability on the part of the procurement entity; (u) the name, functional title and address of one or more officers or employees of the procurement entity who are authorised to 'communicate directly with and to receive communications ;directly from a supplier or contractor in connection with the procurement proceedings, without the intervention of an intennediary; 58 (v);a statement o/ the commitmepts to be' made by the supplier • . :.or contractor, such as commitments relating to countertrad~ or fto the transfer of technology; ,{w)a, statement of the right to Seek review· of an unlawful. act or ; decision of, or procedure followed by the procurement entity in •relation to the procurement proceedings; . ,. • ' (x) if the procurement entity reserves the right to. reject tenders, a statement to that effect; (y/ the formalities that will be required· once a tender has been i accepted, for a procurement contract to enter into force, (including, where applicable, the execution of a written 'procurement contract and approval by the Government and the 1 • i 51 Inserted byparagraph (b)orsecilonorthePublicProcuremoot 24 (Amendment) At;t,2016(Ad914). 46 estimated period of time following the despatch of the notice of : acceptance that will be required to obtain the approval; and (z)'.any other requirements established by the procurement entity under this Act and the Regulations relating to the preparation '.and submission of tendets and to any other aspects of the !procurement pr~edings. CiarificatioJs'~d modifica'tionS • of tender .documents. . ' . 51. (1) A ~pplicr or contractor may request promptly clarification of the tender documents from the procurement entity. ' procurement entity ·shall respond to a request by a supplier or (2) Tire contractor within a reasonable time before the deadline for the submission of tenders to enable the supplier or contractor make a timely submission of its tender and shall without disclosing the source of the request communicate the clarification to the suppliers or contractors provided with the invitation documents. 1 (3) Toe procurement entity may modify the invitation documents by ---issuing an adftendumprior to the deadline for submission of tenders._ . . (4) Th:Caddendum shall be communicated promptly to the suppliers or .contracto.i:sp)'Ovided.with the-invitation documents. by the procurement e,ntityand is pinding on those suppliers or contlcactors. , (5) The;procurement entity may convene a meeting of suppliers.,and contractors to , clarify a.Qd modify tender documents and shall. preP,are minutes of ·the previous meeting concerned with clarification of the invitation docum~Qts.withoul\dentifying the sources of the requests. (6) The minutes shall be given promptly to the suppliers and contractors provided with the invitation documents by the procurement entity to enable them take tlie minutes into account in the preparation of their lenders:· • ' • - 'i Language o( tenders Sub~1is'sion a/Tenders • ., ' -:_, 52. (1) Teiiders shall be formulated and submitted in English. . ----fi(2~) ~S$pomng-doowrients-a.nd-}!B:ll~ed by the tetiderer may,be in another language if they ru:eaccompanied by an accurate trarislation of the relevant passages in English. (3) Where there is a translation, the translation. shall be used to interpret the tender. 47 Submission of tenders 53. (l) The procurement entity shall, (a) fix the place for, and a specific date and time as the deadline for the submission of lenders; and {b) allow tenderers al least six weeks to prepare their tenders for international competitive tendering. (2) [Repealed].' 9 • (3) lf a procurement entity issues clarification or modification documents or if a meeting of tcnderers is held, the procurement entity shall prior to the expi!y of the deadline for the submission of tenders extend the deadline to give the suppliers and contractors reasonable time to talce the clarification or modification, or the minutes of the meeting into account in their tenders. (4) The procurement entity may, prior to the expi!y of deadline for the submission of tenders, extend the deadline. (5) The procurement entity shall, at least ten days before the expi!y of the deadline, 'give notice of an extension of the deadline by fax-,e-mail or any other expedited written means of communication to each supplier or C9nlrjletor~o ~vhomthe procurement entity provided the tender documents or to any new prospective t.c.nderers. (6) A tender shall be in writing, signed and be.submitted in a ~ed envelope. . (7) A tender may alternatively be submitted in. any other fotm specified in the tender documents that pr:ovides a record of the contents of the tender and a s~~ar degree of authenticity, security and confidentiality. (8) Tlie procurement entity shall provide the tenderer Witha ~ipt showing the.date and time when its tender was received. - (9} A iender received by tjle procurement entity after the deaaline,for-- tbe submJ$Si~nof tenders shall.not be opened _andshall be returned to· the suppliec,or contractor which submitted it, . . • Period of validity of tenders; modification and withdrawal of fenders 54. (I) The period of validity for a tende,rshall be the-period specified in-- the tender documents. ki 20t6(Ad91◄). -" Reile<fe4by,sedlon 25Cl' Procuref1UII lhePIJblic (Amendmetlt) ... 48 r •• " (2) A:procurement entity may request suppliers or contractors to -extend the period of validity for an additional specified period of time before the expiry of the period of -validityof tenders.60 (3) A supplier or contractor may refuse the request without forfeiting. its tender security and the effectiveness of its tender will tennlnate upon the expiry of the unextended period of effectiveness. . •(4) A supplier or contractor that agrees to an extension of the pi:riod cif·effectiveness of its tenders shall extend or procure an extension of the period of tenner securities provided by it or provide new tender securities to cover the ext~ded period of effectiveness of its tender. ' (5) A 'supplier or contractor whose tender security is not extended or that has not provided a new tender security is considered to have refused the request to extend lhe period of effectivenessof its tender. (6) A \,upplier or contractot may modify or withdraw its tender prior to the deadline for the submission of tenders without forfeiting its tender security unless otherwise stipulated in the tender documents. (7) The modification or notice of withdrawal is effective if it is received by the procurement entity before the deadline for the s_ubmissionof .tenders. ,Tend.ersecurities 55. (I) The. procurement entity shall specify the principal terms and conditions o( the required tender security in lhe_invita~oii d9cuments: . , .. (2) When the procurement•entity requin;s suppliers or contracto.rs submitting tepders to provide.tenders~urity, • - (a)itll~ ~~ appl~ tq ~ch s11pplj«?J: .r~quirem_ertt Pfcontra~wr; . •. ., .(b)fthe invitation documents sball ·stipulate that the issueF and . - i~nfume~ of the tender. security are acceptable to the iprQcuremententity; , (c). !lcespiteparagraph (b), a tender secwjty_shall not be rejecte.dby •• theprocurement entity on the grouncls'that the tender security w~ not issued by an issuer in the country, if the tende~security ~and the issuer otherwise conform to requirements in th..-e-- t • ~ • • • l , invitation dociiments; ' ~ .- . ' .. '°AddedbysecllOQ 26 of!hePub6c~rccurement (Amendment) Ad,2016(Ad914). ' 49 (d) a supplier or contractor may request the procurement entity to confirm the acceptability,of a proposed issuer or a proposed con.finner of a tender security before submitting a tender and the procurement entity shall respond promptly to the request; (e) confirmation of the acceptability of a propos,ed issuer or of a i proposed confumer does not preclude the procurement entity •from rejecting the tender security on the ground that the ~suer ; or confirm.er has become insolvent or is otherwise not creditworthy. (3) A requirement on tender security that refers directly or indirectly ·to conduct by the supplier or contractor submitting the tender may only relate to (a) withdrawal or modification of the tender after the deadline for submission of tenders, or before the deadline if stipulated in the invitation documents; (b) failure to sign. the procurement contract if required by the _J>roc~elll~t e~ty tg_do so; (c)_failure to provide a required security for the perfonnance of the . contract after the tender has been accepted or to comply with ·any other condition precedent to signing the procurement contract specified in the tender-documents. (4) The procurement entity shall not make a claim to· the amount of the tender security and shall promptly return or procure the rettitn of the tender seciirity'document after whichever of the following occurs first (a) the expiry of the tender security; (b) the entry irito force of a procurement contract and· the-prov~'ion of security for the perfonnance of the contract,. if the security is required by the invitation documents; (c)'.the teaninati.on of the tendering proceed.in~ without.the entry i-intoforce of a procurement contract;.or- ·, (d);the withdrawal of the tender prior to the deadline for the. ;submissionoftenders. •• , • Evaluation and Comparison of Te~ilers . , Opening:of-ten!fers ~. t '~ 56.{l) Tenders shall be 9pened 50 (a) at the time specified in the tender documents as the deadline i for the submission of tenders or at the deadline specified in any .,extension of. the deadline; and (b)_at the place and in accordance with the procedures specified in • the tender documents. (2) The time for opening of the tenders shall be the same as the deadline for teceipt of tenders or promptly after that deadline. (3) A '• supplier ot contractor who has submitted a tender or a representative of that supplier or contractor, shall be permitted by the· procurement entity to be present at the opening of tenders. (4) The name and address of each supplier or contractor whose tender is opened arid the tender price shall be announced to those present at the opening of tenders and communicated on request to a supplier or contractor who has subµ:tltteda tender but is' not present or represented at the opening of the tende~. (5) Tile tender price shall be recorded immediately in the rec~rd of tendering prdceedings. • E·xaminatioJ of tenders • 57. ' procurement entity may ask a supplier or a contractor• for (1) Th<? clarification of its tender in wriling61 in order to assist in the examination, evaluation arid comparison of tenders. (2) A change in a matter of substance in the tender, including.changes in price and :changes aimed at making an unresponsive tender responsive, shall not be s.ougbt,offered or permitted. , ,. • , . (3) D~spite subsection (2), the procurement entity shall correct purely arithmetical er;rorsthat are discovered dwi.ng the examination of tenders. . . (4)·Th}:procurement e'ntity shall give prompt notice 9f the.<;orrection to the suppli~r or.contractor that submitted the tender. . ' o1tenders •• ., , ' Responsive#ess •• •• ' 58.'(I) A·"procurement entity shall regard a tender as responsive .if it conforms' to ~eTequirements set out in the tender invi~tion documents. ' • (2) The procurement entity may, however, -regard a tender• as 'responsive"if it contains minor deviations that do not materially alter or depart from 'the characteristics, terms, conditions and other requirements set bysecdoo27 ofthePublicProcurement 61 lnsc'ited (Amendment) Act,2016(Act914). 51 out in the invitation documents or if it contains errors or oversights that arc capable of being corrected without touching on the substance of the tender. (3) The deviations shall be quantified, to the extent possible, and shall be taken into account in the evaluation and comparison of tenders. (4) A procurement entity shall not accept a tender (a) if the supplier or contractor that submitted the tender is not . . qualified; (b) if the tenderer that submitted. the tender does not accept a 62 1correotion of an arithmetical error made under section 57(3); (c) if the tender is not resp0nsive; or (d) in the circumstances referred to in section 32 with respect to ; inducement from a tenderer. Evaluation or tenders 59. (1) The procurement entity shall evaluate and compare the tenders that have been accepted in order to ascertain the successful tender in accordance with the procedures and criteria set out in the invitation documents. (2) Tire evaluation criteria relating to the subject matter of the procurement shall include (a) the price; (b) the cos/ of operating, maintaining and repairing goods and the functional characteristics of the goods; (c)'. thetimefordeliveryofgoods; ' • (d) the costs of constn1etion and the functional characterisiics of ' the construction; ,, (e); the completion of construction; (j) the cost of the provision of services; (g), the environmental w1d other characteristics of the_subjecJ ma/fer of the procurement; (h) the terms of payment of the procurement; (i) the guarantees in respect of the subject maller; and Q) . any other maller the procurement entity considers relevant to the procurement. (3) The evaluation criteria shall also include , (aJ any criteria au1horised or requit:ed to be taken.into PCCOU/1/ ; by the procurement regulations and any other enaciinenl; and "SubstiMcdby sedlon 28olthePublicProcurement(Amendmenl)lcl, 2016(ACI 914). 52 (b) a margin of preference for the benefit of a domestic supplier or for domestically produced goods or arry other preference authorised or required by procurement regulations or any , other enactment. (4) The procurement entity shall set out in the tender documents (a). whether the successful tender will be·determined on .the basis 1 of price or price and other criteria; •. (bf the evaluation criteria in pursuance.of this section, including ) the price as modified by any preference; (c}' the relative weights of the evaluation criteria; and (d)' the manner of application of the criteria In the evaluation procedure. (5) A prdcurement entity shall use only the criteria and procedures in the tender documents and shall apply criteria arid procedures in the manner· disclosed-in the tender documents.0 (6}64 A criterion shall not be used that has ,not bcell set. out. in the • invitation.documents. (1)65 Thesuccessful tender shall be (a) the tender with the lowestevaluatedtender price; and (b) the lowest evaluated tender ascertainedon,the basis of c,iteria !specified in U1einvitationdocumentswhich shall be. , • : : • •(l)' objcctivcfaridquantifiable;and • .,. ·,•• ,, •• , (ii) given relative weight in the evaluation procedure or • • expressed in. monetary terms where practicable if the procurement.: entity has so stipulated·in the invitation ,,•:,.'· · •documents:·.'· .,..., •',, •.,., (8)" T(:,'.'determ1ne the, lowest evaluated tender1 ,tlie!procurement entity shall consider i: •• ' __ •__ ..:.•...:·"'"· -----'----------- (a/ tb'e·tender price; subjccr.to· any milrgirklf lptefcrencc applied " • ' ;under section60(2); , • , ., •'1 ·' • •· ,; • •• ,. ', {b)ftbe cost of. operating,•maintaining1111d ·repairing the .,goodsor : , ,~iwotks,the tit'ne-for._delivcry, of-the go·o9s;coitlpleti6nrof·Workll-.· : ,.,.••• ",••'•.•;ior·provisions of the services,the functional characteristics of ,• ll;.;· .••;,\' ,.,'.1• J.... _: :·I• . ., 11 Inserted bypa,agrai,11 29ollhoPublic (ii) ofsection Procurement (Amendment) Act.2016(Act914). 14Renumbered by~raph 29ofthePubllc (blofsec!lon Procuremen~(Amendment) Ad, 2018(Ml 914).-- u Renurnbeied by-paragraph-(b)-ol'$cctlon 29'ofthePublic Procurement (Amendment) Ad, 2016(Actll14). 14Renumbeted byparagraph (b)ofscellon 29ofthePubllcProcurtimenl Act,2016(Act-9#)~-- (AniendmenQ 53 the goods or works, the teans of payment and of guarantees in respect of the g_oods,works or services; (c) the effect tha/' 1 the acceptance of the tender will have on (i) the balance of payments position and foreign exchange reserves of the COWltry; (ii} the COWltertradearrangements offered by suppliers or contractors; (iii) the extent of local content, iDcluding manufacturer, labour and materials, in goods, works or services being offe.rcdby suppliers or contractors; (iv)the economic development potential offered by tenders, including domestic investment or other business activity; (v) the encouragement of employment, the reservation of certain production for domestic suppliers; (V!)thctransfer of technology; I (vii)the development of managerial, scientific and • operational skills; and ' (t:Q;national security considerations. Margin of preference 60. (1) A procurement entity may grant a margin of preference for the benefit of tenders for work by domestic contractors or for the beoefit of tenders for domestically produced goods· or for the benefit of ·domestic suppliers of services or any other preference authorised by the Board or required by Regulations or any other enactment.68 (2) The margin of preference shall be calculated in acoordz.ncewith the procurenient regulations and reflected in the record of the procurement proceedings;; (3) 'Th~ I margin of preference shall be authorised • by the Board and be subject to ap~roval by the Board. I Multiple currency tender prices 61. When tender prices are expressed in two or mooo currencies, the tender prices of the total number of tenders shall be convem:d to the same CUR"-et11c911-• - 17lnSCl1ed (c)cl SOCllon byparagraph 29clthePubicProcurem,nl(Amendment)Att. 2016{Act 914). A byseaicnJOoftho~ Added Procurement Ad, 2016(Act91◄). (Amcndmcnt) 54 according to ~e rate specified in the invitation documents for the evaluation and compari¥>ntenders. Repeat tender qualifications 62. (l) The procurement entity may require the supplier or contractor which is th~ successful tenderer, to demonstrate its qualifications again, whether or not it has engaged-inpre-qualificationproceedings in accordance with criteria'.and procedures that conform to section 23 on prequalification • proceed;ngs.'. (2) llie criteria and procedures to be used for the further deril.onstratiohshall be set out in the tender documents. ' (3) Wp.ere pre-qualification proceedings have been used, the criteria for further demonstration shall be the same as those used in the pre- qualificationproceedings. (4) Iftenderers have not been pre-qualified, the entity shall determine whether the· selected tenderer has the capacity to perform the contract effectively. (5) The criteria to be met shall be specified in the tender documents and if the selected tender is rejected, the procurement entity shall make a similiµ-.!,i_!:feJ:!Di_nati9n9fthe_ne,--g ranked best ~val~ tender. (6) If .the supplier or contractor submitting the successful tender is , requested - • ... • to ,, demonstrate .·t - i • its qualifications again but fails to do so, the procurement e_ntrtyshall reject that tender a_ndshall select a. su(?C(:Ssful tC;!lderer,i?';accqrdiincc with section 59(4) .frq~ among the remaining ½na~. subj!!Cto the right of the _procuremententity to reject the ·remaining t~d~is. ;:. ~l ~ -~ ~ :. . - . , . . ~. ~- - ~ . ~ . .Non-disclosureof tender evaluation details · 63. lnform_?tion.relating to the examination, clarification, evahiation -and _ C9mparisonof ten~ers shall not be disclosed to suppliers or contractors or to any oth!}rpei;s~n~ot µivph:ed. officially in -~~ exaro,t!)ati~Jbevapation or compl!{iso.nQ~ tenders or in tbe.-decision_ ~ ... •• on-which teoo~ould-be-1lceepteeii(i,.,be=~ • • -. •• • • J, ' . _.. . ..P,ro'(ided ~--XCJ:P.t:as r in section.28 on the record of procurement. proc~s. .Prohibition=ohlegotiationsawitlrsuppli~or=contFactors:...,..---.-.==, 64,{t)-Subjectto=thlJ'exception-itrtbis-section,ncgotiatio~Qt-take -place between the procurement entity-and-a-supplier or contractor-with~ respectto11t~der submitted-bythe supplier or contractor. .. 55 • • (2) If the lowest evaluated responsive tender exceeds the budget for the contract by a substantial margin, the procurement entity shall investigate the causes for the excessive cost and may (a),consider requesting new tenders; or (b/ subject to approval by the relevant Tender Review Commillee69 I and guidelines issued by that Board, negotiate a contract with ''I, ' ·J the lowest evaluated tenderer to try tQ,obtain a satisfactory . contract. Ac~eptance pf tender and entry into force of procurement contract 65. (1) A tender that has been ascertained to be the successful tender in accordance with this Act shall be•accepted and notice of acceptance of the tender shall be given within thirty days of the acceptance of the tender to the supplier or contractor submitting the tender. {2} Where the tender documents require the supplier or contractor whose tender has been accepted to sign a written procurement contract conforming to the tender, the procurement entity and the supplier or contractor sl:iall sign the procurement contract wi_thinthirty days after the notice referred to in subsection (1) is despatched to the supplier or contractor. ' ' L '(3) Wli~re a written procurement contract is required to be signed, the contract s4a].}enter into force Oil the commencement ·date indicated on the contract. (4) ~tween the time when the notice is desp3:!chedto the s~pplier or contractor and 'the entry into force of the procurement contract, neither the procurement. entity \10r the supplier or contra6tor shall take an action. that interferes with the entry into force of the procurement contract or with its performance. • : ' ·•(s) E~'cept as provided in· subsection (2), a procurement contract in accordance witli'the 'terms and conditions of the accepted tehder:..entei:s..into- force" when 'the notice is despatched to the supplier or contractor that s·ubmitted tbJ tender, if it is despatched while the tender is in force. • (~) Th~ notice is despatched when it is properly addressed or otherwise diiected and transmitted to the supplier or contractor or· conveyed l .. ' 69 Substituted bysection31of thePublicProcurement (Amendment). Act,2016{Act914). f • \ I ,, ll, 56 to an approptiate authority for transmission to the supplier or contractor in a manner authqrised in section 26. (7) If µiesupplier or contractor whose tender has been accepted fails to sign a wripen procurement contract within thirty working days of receipt of the notice'·of acceptance or fails to provide the required security for the performance \of the contract, the procurement entity shall select a successful tender in acc~rdance with section 59 (3) from among the remaining tenders that are in fo.rce, subject to the right of the procurement entity to reject the rc;mainingtenders. (8) Toe notice provided for ill subsection (1) shall be given to the supplier or contractor that submitted the successful tender. \ . (9) A procurement entity shall give notice of the procurement contract in writing to unsuccessful suppliers and contractors. (10) The notice shall (a} specify the name arid address of the successful supplier or !contractor who has entered into the contract and the contract {price; (b);be given after the co=enceinent of the procurement contract land may include the provision by the supplier or con.tractorof ~• •• • '. .·1~e_curify.for the performance ofthe contract; ' ' •• (c) for contracts above the threshold in the Third Scbedaje, be ;:published ~ the Public Procurement Bulfetin •which shall fdisclose the names of firms or individuals awarded contracts, • :the start and completion dates, as well as the value ~ . of 'the ', J~ontracts. • • • • ✓ •4·•-· 1·. j: PARtSIX .. • • •.• ' • • ·'f ' .Methods and P.rocedureslo Procure Consultants ~otic~ of ipvi!ation of expressions of interest· and preparation of . sliortlists • · • •• • • • 66. (1) k Jrocurement entity sball invite consulting .services by· cail.sillga notice seeking expression of interest in submitting a proposal to be published in the Public:Procurement Bulletin for consultancy contracts in accordance with the FiflkSchedule. 10 (2) The notice shall, .,. .,. 70 Substituted · ,... or · • bys~l'1fl 32 • 1hel'llblic Procurement . (Amendlllel\t) . Act,.2016 , (Act914). . ••• • _ • • r 57 r (a) contain the name and address of th.e procurement entity and a brief description of the services to be procwed; and (b), be published in English and in a newspaper of wide circulation or in a relevant trade or professional publication of wide circulation except where participation is limited solely to oational consultants under section 44 (I) or where the procurement entity, decides that only national consultants may submit proposals. (3) Where direct invitation is necessary for economic and efficiency reasons, the procurement entity with the approval of the Board may apply the provisions of subsection (I) and (2) where (a).the services to be procured are available only from a limited number of consultants, if it invites expressions of interest from all these consultants; (b). the time and cost required to examine and evaluate a large 'number of expressions of interest would be disproportionate.to 'the value of the services to be performed, if it invites proposals from enough consultants to ensure effective competition; or (c) direct in'vitation is the only means to ensure confidentiality or is· required in the national interest, .if it invit!'S, ea.ougl) proposals from consultants for ,effective competition. Shortlisted candidates 67. (l) The·. procurement. entity.,,,is resP.onsi~le)'or 1,1:\e. pi:epa;ration•of: a· shortlist of consultants to be considered to participate in· the selection process. . . • (2) ~e- shortlist may, comprise only natiOnM,,CO.Q51,,lltants but ~ruiil comprise at I~! three and not more than six consultants. (3) The 1-.. procurement entity shall provide the invitation ' for.proposals • • to the shortlist of consultants selected on the.oasis of quality. (4) Thyprocurement entity sball·prOVIdethe invitation for proposals,,,_. to the most q'uali:fiedor single sourced consultant selected on the basis of the consultant's q~mlI.fications. Content-of rcql(ests-for-proposals for consultancy services 68. (1) The.•procurement· .entity shall use thc-,·standard invitation- for proposals--sti:Plllated in the Sixth Schedule1~ aod ·tbl: re,ii1itenief1tSfor a specific assi$Jlfilent shall bo introduced lhr(!ugh-infbrmation to. c;opsultants; . .. . n S~!Uled by ~raph !hePIJbllcProcxirnmeht (Amendment) Ad, 201fi(Ac(9f4);· (a)olSEC!kln33cl -' 58 data sheets or contract data sheets and not by introducing changes in the standard tender documents. (2) Th,e invitation for proposals shall include (a)j the name and address of the procurement entity; (b)ltbe I language Or languages •in which . proposals are to be !prepared; :, c{c)Jthe, manner, place and deadline. for _the_submjssion of ' Iproposals; • •• • (d)r a statement fo the effect that the procurement entity reserves the right to reject proposals; (e).the criteria and procedures related to the evaluation of the :qualifications oftbe consultants and those related to additional lqualifications under section 24(5); (I) •the requirements on documentary evidence or other information that shall be submitted by suppliers or contractors .. (g),1tothedemonstrate their qualifications; nature and. required characteristics of the services to be 1 jproc~cd includin~ the location w~ere the services ~e to be' provided and the tune when the services are to be provided; ' • (h)!whether the procurement entity_is seeking proposals on ~arious lpossible ways of meeting its needs; (i} •thecurrencyin wliicb the proposalpriceis to be expressed; (j) /the manner in which the proposal price is to be expressed, lincluding a statement on whether the price covers elements iapart from the cost of services, such as reimbursement for ; trwisportation, Jodging,"insurance, use of equipment, duties or taxes; (k)-the procedure selected under section 71(1) to ascertain the l successful proposal; (I) Ithe criteria to be used to determine the successful- proposal, ' • (including any margin· of preference to be used under sec/ion I 6071 and the relative weight of the criteria; ·(m)tbe currency that will be used to evaluate and compl!.ro----- ;proposals and either the exchange rate that will be used for the conversion of proposal prices into that currency or a statement , .. 12 Substituted byparagr81)'1 (b)ofsedlon33ol thePubtlcProcurement _(Amon~t) Act.,2016(Acl914). 59 that the. rate published by a specified financial institution prevailing on a specified date will be used; (n);a statement on alternatives to the chara<:teristics of the consultaoc)' services, contractual teims and conditions or ot:bcr , rcquirel}lentsset out in the invitation for proposals if permitted •and a .description of the manner in whi<:h the alternative proposals are to be evaluated and compared; (o) the name, functional title and address of one or more o~rs or employees of the procurement entity who are aulhorisec:ta comµnmicate directly with and to receive communicatiQ!lS directly,·from consultants in connection with the procurelll(lnt ' proceedings, without the intervention of an intcnnediary; (p) the means by which consultants may seek clarification on the 1invitation for proposals and a statement whether the !Pro<:utement entity intends to convene a meeting of I consultants; and (q) the terms and conditions of the consultmcy contract ns known f to the procurement entity and the contract form to be signed by the parties. Criteria for th.e evaluation of proposals 69. (1) ThQ procurement entity shall establish criteria to evaluate the proposals and determine the relative weight to be accorded to each criterion and ihe manner in which they are to be applied in the evaluation of proposals. ' '. (2) TJ.leconsultants shall be notified of the criteria in the invitation for proposals1and the·criteria may deal with the following: (a). the qualifications, experience, reputation, reliability and • Ip~~essional. and manage~al _compe~e~ceof the ~onst'.iJtant~d I U:fopersqnnel I to• be'involved 1.0,providing ...,J • , ; the sep;1ces; -t J , (b). the effectiveness of the proposals subm.ittedpy the ~nsultants .,• ' •. ·' l.i~ meeting the needs of the procuremep_l~ntity as specified i!) •~lion 68(2)(g); . • . ., (c) ~~ proposal price, including the ancillary.or related C9.sts;.and ; ' (i) the effect that the acceptance of a proposal will have OJ). the balance of payments position ru1;l foreign exchange reserves of the country; (ii) the extent of participation by national"'·~--- 60 (ili) the economic dcvelopme.nt potential offered by the proposal, including domestic investment or other business activity; (iv) the encouragement of employment; (v) the transfer of technology; (vi) the development of managerial, scientific and. operational skills; and . , [(vii) Repealed] 73• . .. ,• , 1• •" , (d);national security considerations. (3) A procurement entity may grant additional points for pilftlcipation by nationals who are key staff in foreign and national firms, and these points shall be caltulated in accordance with the procurement regulations and reflected in ~e record of the procurement proceedings subject to approval by tbeBoard. l Clnrificatioqand modificationof invitation for proposals 70. (I) A ,consultant may request clarification of the invitation for proposals from the procurement entity and where that request is made the procurement:entity shall (a/ respond to the request within seven working days of tbe request being made if the request is received· by the !procurement entity within fourteen working days ·prior to the deadline for the submission of proposals; and (b)iwhere the request is made later than fourteen days prior to tb.e 1 deadline for the submission of proposals, respond promptly and early enough to enable the consultant make a timely 1submission of its -proposal and shall, without identifying the !source of the invitation, communicate the clarification to the / other consultants to whom the procurement entity has provided • • • ·, ilthe invitation for proposals;, ,. :·. ··• ' • i ,., , ,,: , ·' :., • •·' •• (2) A procurement entity may,whether'·on· its initiative or·as a·result of:;n ,t'cquesf'fur •clarification by a consultant, modify the request for ptoposals by.'issliing an' addendum at any time prior'to'the deadlirie for the submission o'fproposals. •(3) The addendum shall be cornmuoicatec\, promptly before the deadline for, the .submission of proposals to the shortlisted consultants to j h Repealed bysecllon 34of thePublicProcurement (Amendment) Acl.2016(Act914). 61 whom the procurement entity has provided the request for proposals and shall be binding on those consultants. (4) If the procurement entity convenes a meeti.ng of consultants, it shall prepare minutes of the meeting containing the requests submitted at the meeting for clarification of the request for proposal and its responses to those requests, without idcntifyi.ogthe sources of the requ.csts. (5) The minutes shall be provided promptly before the deadline for the submission of proposals to the consultants participating in the selection proceedings fo enable them take the minutes into account in preparing their proposals. ! Choice of ' selection procedure 71. (1) The procurement entity shall use the selection procedure provided for in section 7S(6)(a), 15(6)(b) or 76 that has been notified to consultants in the invitation for proposals. (2) The procurement entity shall include in the record required under section 28, a statement of the grounds and circumstances on which it relied to justify the 'use of a selection procedure under subsection (1). (3) Th.is Part does not prevent a procurement entity from resorting to an impartial panel of external experts in the selection procedure. Conditions for use of other methods of selection of consul roots 72. (l) A procurement entity may select consultants by quality-based selection for the following types of assignments: • (a/complex or highly specialised assignments, where (i) it is difficult to define precise terms of reference and the required input from the consultants; and (ii) th.e••client •e.'<J)ectsthe 'co'nsultants 'to demonstrate ,. innovation in their proposals; •• (b) assignments that have a high downstream impact where the iobjective is to have the best experts; and (c), assignments that can be carried out in substantially differ~nt •ways where proposals will not be comparable. (2)·A ·procuremcnt entity may use selection under a fixed budget approved ' by""theBoard where the assignment is simple and can be precisely defined. ! 62 ; (3) A procurement entity may use least-cost selection procedures for 74 small value B;Ssignmentsubject to the value threshold in 'the Fifth Schedule wher<;.the assignment is of a stanc!ard or routine nature· and well-esfa.blished practices • andI standards exist • (4) A \procurement entity may· use, selection--based-on, consultants' ..... qualification~ for very small val~e assignments subject to the value threshold •. in the Fifth Sohedule75 where the.need to.prepare. and,eva\~te,comp~titive proposals is 1;1otjustified. • • • (5) Toe procurement entity may select consultants by inviting proposals fro_m:a single consultant where there is (a) only one eligible consultant; (b)'.an emergency as specified in section 40(1 )(b) and (c); or (cf; a follow-up assignment. Receipt of proposals 73. (1} The procurement entity shall allow enough time for the_consultants • to, prepare th~ir proposals. • -• -(2) Th'e time allowed shall depend ort tlienature of the assigrurient but sliall not be l~ss than four weeks. • ,,.• (3) To· safeguard the integrity of the _process, the techoical,,~d . financial :proposals shall be submitted in'separate sealed envelopes,: •• . , • 'r,<r' '(4)After'·llie·'cfosing •tiine'· for' the'•'~birii'ssiori:''of·"ptoP.6'salsi, the ':iipJ,foPnal'e:1omniittee 'rjf th,e procurement entity shall open the technical .proposals inu.nediately after the .deadline.for the ·submission ofpropo.sals, • • •,,';,;:• '· _(5)·1'f/-~financiarpfyposals ~lial1-remair(sealed ,until the}'•arecopeiled_ ·puJ:>licly"\jndei'·seetion·s.6: • • ._;·,·;• .,.. , -..,, : ),. -:•:·,, • 1,·.-s:. "'''".-'·'·:'-,·,.••, , .-., •.,:- ·;•, -: 1 ·>'i, : ,.. ... • • • , 'Evalu:i\ionof proposals • • • • 7_4. (lfriieevaiiiatioirof-.the-1>iopos!U5sliall ·oe.cari-i~d .dut'in lwo;-.s~ges:-==: fdst'thequality;;aiid ' !•· ., • then·th~ cost •. ' •••• ' • .. .. · . . • (2))~Yali1atoiirof technic'al ·proposals shotild. ncit_have·;acCCj,$to the financial ,pi-o~o~ais utit:iitlie. tichiiical -evalhatiob;is fevielvid qnd.qppto.ved : by the appropriate approvintifu_thlirity.'6• . • • ,., • • • . . ~ ,.:·, ~--'.~ -,,;:,:,(3)·Toe,:evaluation shall be carried out in conformity witli the provisions in the invitation for,proposals. , .. " Sub5tilul~br sectior1 35QIlh~PublicProcurement (Amendmenl)A<:A. 2016(Ad914). 15 Substituted by'sectici,' 35ol lhePublicProcuremeni (Amendiriepi) A<:A. 2016(Ad9f4). byparagraph ,. Substituted ofthePublicProcurement (a)of sectioir36 (Amenooient) A<:A.2016(Act9}:i). - ,., - ,·. '63 (4) The evaluation panel shall open the financial proposals after the approval of the teclmical evaluation report by the appropriate approving authority arid prepare a final evaluation report for approval by the appropriate entity tender committee.n Selection procedure where price is a factor 7S. (1) Where the procurement entity uses the procedure in this section, it shall establish a threshold on the quality and technical aspects of the proposals in ·accordance with the criteria established under -section 69 apart from those set out in the request for proposals and shall rate each_proposal in accordance tvith that criteria and the relative weight and manner of application of those criteria set out in the invitation for proposals. (2) The procurement entity shall notify the consultants whose proposals did not meet the minimtim qualifying mark or were non responsive to the invitation for proposals and tenns of reference after the evaluation of quality is completed within a period of fourteen days after the decision bas been taken by the procurement entity. (3) The name of the consultant, the quality scores and the proposed prices shall be read aloud and recorded when the financial proposals are opene_d. (4) The procurement entity shall prepare the minutes of public opening.of financial proposals which shall be part of.the evaluation report and shallretain.,. this record. • • • (S) Th_eprocurement entity shall compare the prices of the proposals that Jiave atta.ineda rating at or above the threshold. l (6) Th.esuccessful proposals sh~l be . (a). the proposals with the best combined evaluation in terms of the :,criteria established under sectio.n 69 11-partfrom price in the '.case of quality and cost-based selection; (b) the proposals with the lowest price in the case of least-cost selection; or (c) the consultants that submitted the highest ranked technical . proposals within the budget. •• (7) The collSllltants with the winning proposals shall be invited for negotiations, which shall focus mainly on the technical proposals. ' 71 Addedby paragraph (b) ofsedlonJSof lhePublicProcwemenl 2016(Ad914). (Amendment)Aa. 64 (8) Proposed unit rates for staff-months and reimbursables shall not be negotiated unless there are exceptional reasons. Selection procedure where price is not a factor 76. (1) Where the procurement entity uses the quality-based selection, selection based on consultant's qualifications or single-source selection, it shall engage 'jn negotiations with consultants in accordance with this section. .. t . (2) The procur~ment entity shall (a)j establish a threshold in accordance wi_thsection 75(1); (b),invite for negotiations on the price of its proposal, the iconsultant that has attained the best rating in accordance with '.section 75(1); • (c) inform the consultants that attained ratings above the threshold that they may be considered for negotiation if the negotiations •with the consultant with the best rating do not result in a procurement contract; and (d),inform the consultant with the best rating, that it is terminating \the negotiations if it becomes apparent to the· procurement t entity that the negotiations with that consultant invited under !-subsection(2)(b), will not result in a procurement contract. · (3.)'fl}e.procurement entity ·shall, if negotiations with the consultant ~~ .tJcl,f, be,st,.r~?1,1g,firil~1 4l~i-~ the c9~?J~t~at, obtained the second best if. rating; anij .. the negotiatio~s with thal <:°~ul~~ ~~, ~~~ re!~t. i,_na procurement·. contract, the procurement .entity snail mvite the other ~q~ul~ti~for ~~gotiations'on the basis of their rating )llltil it ii:nves. at a contract oi r~Jecti tt;ie remaining proposals. • • • • . • • • •• .. . Confidentiality b, selectionprocedure78 77. (1) The.procurement'entity shall treat proposals imd the ne~o.tiati?i;tS·. on selection; procedure as confidential and ay~id ):he disclosury_-of their ~ • ♦ • • ' • a ♦ t (J • \ • • • • I contents to compe_l;ing consultants. (2) AP.art)' to the negoti.aticins-shal,l.not re".~alto,·any~ther.~rsqn the technical, price •'. or any• other information' relating •to. • the l negQti.atiops •~ -. without • • the consent of t4e other party. . ., .•. l i , 71 Added 37of thePublicPrOC1Jrement by sectio~ Ad,-2016 (Amendment) ---=~~::··· • (Act91°4); ' • "· • •,-:- ..• 65 •• •, • .,., • • l. PART SEVEN I Complaints and Administrative "Review Rigltt to cqmplai11t or administrative reviewso 78. (l) A supplier, contractor or consultant that cJaims to have suffered, or that may suffer ' loss or injury due to a breach of a duty imposed on the procurementlentity by this Act, may seek redress81 in accordance with this Part. I (2) D~pite subsection (1), ·the following shall not be subject to the complaint or administrative review82 (a) the selection of a method of procurement under sections 35 to 43; (b) the choice of a selection procedure under section 15(6)(a), .75(6)(b) or section 76; .(c)' the limitation of procurement proceedings in accordance with 1 section 44; and 1 (d) a decision by the procurement entity under section 29 to reject 1 tende.rs,proposals, offers or quotation. (3) A complaint may be made by an application to the procurement entity. '<-( 4) A request for administrative review may be made by an application . to..the . Board. .. . ' . (5) A ·tenderer, supplier, contractor or consultant may appeal a decision taken in administrative review in court.83 Complaint procedure by procurement entity 84 79. (I) A complaint shall, in the first instance, be submitted in writing to the head of: the procurement entity if the procurement contract bas not already entered into force. (JA) The procurement entity shall not take any step that will bring into force a proCo/ement contract or framework agreement where the entity (aJ. receives a complaint within the lime limits specified; • 38ollhe PublicProc:urement bySECllon l'I11\SCfled (Amendmeol) Act,2016(Ad914). 80Subs!iMed by~ (a)clsedioo39 cl!hePub&:Procurement Al; 2016(Act914). (Amendment) 11 Subs11Medbyparagf3llh (b)clsedioo39cl lhe PIJblc: Procurement (Amendment) Ad, 2016(Ad914). 11 Subs!lbrted (c)cl section39of thePubicProa.vement byp;llll9lll!)h Act,2016(Act914). (Amendment) ll Addedby parag~ (d)cl sedlon39cl thePublicProcurement 2016(Act9t◄). • (Amendmenl).Ad. "Substllllledby paragraph(a)cl sedlon40cl the PublicPlocurement Id. 2016(Act914). (Amendment) 66 (b)' receives notice of an application for administrative review l from the Board; or (c): receives notice of dn application to or appeal from court.as (2) Tb~ head of the procurement entity shall not entertain a complaint unless it was submitted within twenty days after the supplier, contractor or conswtaot submitting it became aware of the circumstances giving rise to the complaint o; when that supplier, contractor, or consultant should have become aware·ofthose circumstances, whichever is earlier.· (3) Tb,e procurement entity may entertain a complaint or continue to entertain a complaint after the procurement contract has entered into force despite subs~on (1). 86 . (4) A jprocurement entity shall attempt to resolve a complaint by mutual agreement of the supplier or contractor and the procurement entity. (5) Tb.e procurement entity shall, within twenty-one days after the submission o'fthe complaint, issue a written decision.87 • (5A) The procurement entity may overturn, correct, vary or uphold •.any decision: or action talren by itself in the procurement proceedings to -which the application relates but this shall not apply to decisions taken.by ·the Board or the court.as (6) The decision shall (a) state the reasons for the decision; and (b) if the complaint is upheld io whole or in part, indicate the .1corrective measures that are to be 'taken. •• (?}If ~e procurement entity does not ·issue a decision by the time Specified in subsection (5), the supplier, contractor, or consultant, submitting the complairit is entitled to institute proceedings for administrative review under sectiorl 80.89 • • • ' (lA) All decisions talren under this section, shall be in writing• and shall state th~ action taken and the reasons for the decision. • - • • . (lB) All, decisions taken shall promptly be made part of the record of !, ,. ,./Cc'- "I11Sel1ed :-" . _byparagraph(b) ofsection • .-.. 40ollhePublicP!qcuremenl . .. (Amendment) ~~ • - • • Ad, 2016(Ad914). 8 Amelld'ed bypitagraph(ci of section40 of !hePublicProalremeni (Amend,menl)Ad, 2016(Ad 91.4) b-/lhe defeUociof-'heado(lhe'lnllne-1.··• ' . -' .• .._., 17 Amended byparagraph.(c) of sectton40 of !hePublicPr0C1Jremcnt (Amendment) Al:;t,2016(Ad 914)by the deletionof'headof!he'inlinef. • • 13 Inserted byparagraph(d) ofsection40ol thePubllcProcurement (Amendment) Ad, 2016(Ad 914). 19 Amended bypariigraph (c)ol section40ofthePubOc Procurement (Amendment) Acl.2016(Ad914)bythe deletiqnof~-line.;1..--------------------- l 67 the procurement proceedings and shall include the complaint received by the proc1n·emententity under this section.90 (8) After the institution of lhe proceedingsfor administrative review unden section 8091, lhe competence of the head of the procuring entity to entertain the complaint ceases. Administratire review 80. (1) A supplier, contractor or consultant entitled to seek admi11istrarive review may submit a petition to the Board if • (a) the head of the proczuement entity does not entertain the complaint because the procurement contract has entered into force; or (b) the supplier, contractor, or consultant claims to be adversely affected by a decision of the head of the procurement entity under section 79. (2) The petition shall be submitted within twenty-one days after (a) the supplier, contractor or consultant became aware of the circumstances giving rise to the complaint, or .(b) the rime -when the supplier, contractor or consultant ought to have become aware of those circumstances, if the complaint cannot be submitled under section 79 because of the entry into force of the proC11rement >f • • '. • • • • .. •• , .. ;- ~ contract. . (3/0n receipt of a complaint, the Authority shall give notice of the complaint promptly to the procurement entity. (4).Ihc Board may (a) declare the legal rules or principles that govern the subject-matter of the complaint and address any suspension inforce;. (bJ.ortler t}lai the provisio,:zs_of.this.Actbe conp/ied ll!ilh; (c) prohibit tfze procurement entily from acting, taking a decision or fo.l~owing a proc¢ure th(!t is r.qt· in compliance with theJ'ro.,visionsof this A.ct; '(d) require, the ,~proCJJte1J1ent . ~ntity that. has qcted..,.o , ,; , • proceeded-i fra·man'ner-thaJ-is-nohin-rompliarJCe--wif h4he.::_. provisions of this•Act to ta/re action-or-make-<rdecision . . '"lnseited by~{e) ofsection40of!hePubl'ICPtocufemeht(Amern.iillenf)Acl. 2016(Acl914).: • 1 lnsa1edbypara;µph (ijofsectl011 40of thePublic P!ocurement (Amelldmonl)Act,201_6(Act914~ 68 or proceed in a manner that is in compliance with the , provisions of this Act; /e) overturn in whole or in part a7: act or decision of the . procurement entity that is not in compliance with the ; provisions of this Act other than an act or decision that brings the procurement contract or framework agree- ment into force; (j) revise a decision by the procurement entiJy that. is not in compliance with the provisions of this Act other than any act or decision that brings the procurement contract or framework agreement intoforce; {g) confirm a decision of the procurement entity; '{h) require the payment of compensation for reasonable costs incurred by the supplier or contractor who submitted the complaint, (i) in connection with the procurement an proceedings as a result of act, decision or procedure followed by the proa,re,nent ·entity in the procurement . . proceedings that is not in compliance with the provisions of this Act, and , {ii) for any loss or damage suffered; which shall , be limited to the costs of the preparation of the tender or the costs related to the application or both; ,{/) order that the procurement proceedings be terminated; (Jc)authorize the procurement entity to enter into the procurement contract or framework agreement where ii is satisfied that public inlerestjustifies this; . (/) dismiss . the complaint and, require. the .payment of I compensation_from ihe complaint.mtfor ,:easonable costs 1 incurred by the procurement entity or the Board . • (5) The J/oard shall issue a wrillen decision concerning the complaint wilhin twenty-one days after starting an administrative review; stating the reasons/or the decision. , (6) The decision of the Board and reasons for the decision shall be made part of the record of procurement proceedings. , .. ., • (7) Corrf!spondence pertaining to a complaint shall be copied to the- - Board (8) Wilhf>Ullimiting this section, the Minister-may, in consultation with 69 the Board by legislative instrument, specify different administrative review procedures /or specific sectors or entities. 92 Certain rules applicable to review proceedings 81. (1) The head of the procurement entity or the Board shall notify the suppliers, contractors, or consulta:uts participating in procurement proceedings about the submission of a complaint and of its substance within fourteen working days after the submission of the complaint for review. t . . (2) A supplier or contractor or any government authority whose interests are _or could be affected by the review proceedings is entitled to participate m:the review proceedings. (3) A i,upplier, contractor, or consultant who fails to participate in the review proc6cdings is barred from subsequently making the same type of claim. - (4) A copy of the decision of the head of the procurement entity or of the Board shill be furnished within five days after the issue of the decision to the supplier, contractor, or consultant submitting the complaint to the •procurement entity and to any other supplier, contractor or government authority that has participated in the review proceedings. • {S) Mer the decision has been taken, the complaint and the,,decision sbal~ be promptly made avail~le for inspection by the general public; but an information shall not be disclosed if its disclosure would be contrary to law, would' impede taw enforcement, would not be in the_public interest, would prejudice legitimate commercial interests of the parties or would inhibit fair c~mp.etiti'on. Suspension of P,rocurement pro<:;eedings ... , 82. .(1) ~ . ~ Authority in adniini~trative review . ,. prot;ee,dings ,. , . . .. - ... . .may , _,1, , . , ,(a),._.ord~r the suspef!,Si_of,! df the P[~q_uren1e,;,.{ pr~dir:,g~ 1( .an1 • . time before the.entry into force of the procufemerJ·-contract; ·or ::-,;• • -· . • • • ~• •' • I •( ,,,:.,~.. • _ . (b).,•pr.derthe suspe'nsion of. the perfonizance of,.a P!,f,rtfT<r'!l-er:it ' - ' contract or the operation of a frdrneworlr:agreemeik thiil has entered into force;_ . for as fong as itfinds the suspension necessary to protect the inte'f;2stso.,(the '_applicant,0ffnless it decides 'that urgent pi.tbtic fnkrest conside~ations= ·require the procurement proceedings, the ptocuieme'nt co'!:)tract or ·., Subs1ituted by• 41of t1iePublicPrOQJremen\ (Amendmenl) 70 Act,-2016{Act 914). .. .. framework agreement to proceed; or (c) order that any suspension applied be extended or lifted. (2) T~e Authority shall order the suspension of a procurement proceeding for an initial period of thirty working days or as required under subsection(}). (3) The Authority shall, upon receipt 'Of an application for administrativJ review, promptly • . (a) ;uspend or decide not to suspend the procurement proceedings ' the performance of a procurement contract or the operation ;or hf a framework agreement in accordance with subsection 1 V.(a)and (b); (b) 'notify the procurement entity and identified participants of the procurement proceedings to which the application relates, of the application and its substance; and , (c) notify the identified participants of its decision on the 'suspension of the procurement proceedings to which the 'application relates. •- - • (4) Wf,ere the Authority decides to suspen'd .•• (a) the procurement proceedings, ,. , (l,J the performance of a procurement cqntract, or (c) the operation of a framework agreement, it shall also specify the period of suspension. • , (5) Where the Authority decides not to suspend the procurement, it shall • r •· ·f , .· (p) provide ,the applica(lt and procurement ..e.nfity-·.,wilhthe ....• ·.,,,j 1 reasoJ;JSfor- its decision; and (b) promptly publish a notice of the application on the website.of /· the Authority when the application/or adminis,;.ativ.ereview : is received • •,: (6) T.he.,Board may dismiss t~·l.(application and shall lift any suspension a°() plied, where it decides that: , , , • ·.-.• . •· . (a) tfie application is. manifestly wifhoµt merit or was not I ·presented in·compliance with the deadlines in subsection 80 L -..(2 (a) and(b),·or • ,. • ,. (b) ihe application is without standing; , and shall promptly notify the applicant, the procurement entity and any other relevant paJficipants of the dismissal, the reasons for it and that the suspension i~ lifted. 71 (7) The dismissal by the Board constitutes a decision. on the application. . • (8) The proC11remenrentity shall promptly provide the Board with effective access to documents in its possession related to the procurement proceeding; after the lodgmen.tof a complaint. (9) The procurement entity shall nor take any step that would bring into force p procurement contract or framework agreement in the procurement proceedings concerned (a) where it receives notice of an applicationfor administrative reviewfrom the Board; or (b) where ii receives notice of an application or appealfrom court. (JO) The prohibition in subsections (9) and 79 ()A) shall expire fourteen working days after the decision of the procurement entity, the Board or the court has been communicated to the applicant, the procurement entity and any other participants in the review proceedings. (11) The procurement entity may request the Board or a court to authorise it lo enter into the procurement contract or framework agreemenJ on the grounds of urgent public interest. • (J 2) The-Board or court may, 11ponconsideraticm of the request, authorise the procurement entity to enter into the procurement contract or frameivork agreement where ii is satisfied, that. urgent public interest considerationsjustify this. ,, (13) -The decision of the Board or court shall be made part of the record of procurement proceedings and promptly cornm1micat¢. to tfte procurement· entity, ·the applicant and to arry other participant in the administrativ~ review proceedings.' 3 PART EIGHT Disposal of Stores, Vehicle!', Plant and Equipment Authority to dispose 83. (1) The head of a procurement entity shall convene a board {)f survey comprising represe~tatives of departments with vehicles'\ unserviceable, ob.solete·or s_urplusstores, plant and equipment which shall report on the " Substitutedby section42 al IllePublicProcurement (Amendment) Act, 2016~Ad914). "lnse<'.edbysection43 d the PulilC Procurement{Amendment) Ad.,2016(Act914). ,. Insertedby_ seclion44 ofthe~~ ~I)~ 20W(Ad914), 72 • !. items and subject to a technical report on them, recommend the best method of disposal after the officer in charge bascompleted a board of survey form. (2) The board of survey's recommendations shall be approved by the head of the procurement entity and the items shall be disposed of as approved. (3) Where items become unserviceable for rea.~ons other than fair wear and tear, such as·through accident or expiry, a-set procedure established , by the Board for handling losses 'shall be followed before the items are boarded and disposed of. ' Instructions and guidellncsfor disposal of vehicles and unserviceable stores . 83A. {/) ·The Minister shall, In consultation with the Board, makefurther Regulations on the disposal of vehicles, unserviceable stores, and obsolete equipment. (2) The Board shall issue detailed instructions and policy guidelines related to the disposal of vehicles, unserviceable stores and obsolete equipment.96 ., . Djsl'os~ P".?~c!J.ures . , . . • 8<1.'!)isp"(!sal·ofobsolele•and surplus items shall be by ··• ,;, ·,, • ~ • ' .; • • • • • • t. • .. > • (a) transfer to gove;nment departments or other public eiillti~, I •• , with or ,vilbout financial adjustment; • • • .. . • ... •• • • ,. • ' • • .... f '(b) sale by public tender to the'hlghest tenderer, subjeet 10·reserve price; . .. . . . {c}.s-~~~~ ~~-~~c auc~o17~bjec~ to ~ r~uv~'P~:C; o~ _, ;., , ... {d} d~struction, dumping, or burying as appropnate. \ .. ' ' ., . . ,. .. , ,.. • ~- PARTNINE I 1 Miscellaneous Provisions • I• .:, ' • ·• \.•,' • - = • •• ' ' "• ,• • •• Instructions and gujdelines for•dispo.salof unserviceable stores 8S. Repealu/ 7 . . . • . • , . , ..' ... : " lnscrlcdbysciakxi45orlhoP\Jbl'ic Procurement Ad.2016(Act914). (Amendmenl) ~ Repealed ...,. ,,, . by sec'ticn 46 . of Ille Public (Amendment) ProaJremenl Ad,2016(Acttl4), -'·" • : · .. - • 73 •• Code of conduct 86. (]) The Board shall, with the approval of the Minister, compile and publish a code of conduct that shall apply 10 each official of a procurement entity, the members of an evaluation panel, members of a tender review commillee, members of the Board as well as Jenderers, suppliers, contractors and consultants. (2) TIJecode of conduct shall address (a) conflicts of interest in procurement; (b) measures to regulate mallers concerning personnel responsible for procurement; (c) declarations of interest in particular procurements; (d) screening procedures and training requirements; and (e) any other matter related to the ethics of procurement. (3) For the purpose of subsection (2)(a), where a tenderer has a disqualifying conflict of interest, the affected party shall be given the opportunity to remedy the conflict of interest in accordance with the relevant procedures of the procurement entily concerned (4) A decision of a procurement entity to exclude a tenderer from the procurement process by reason of conflict of interest and the reasons for the exclusion shall be included in the record of procurement proceedings· and shall be promptly communicated to the tenderer concerned (5) Th.'ecode of conduct shall promptly be made accessible to the public and shall be updated regularly as directed by the Board. 98 . Modifications 87. (I) Except in cases of extreme urgency, where !here will be an aggresate increase in the original amount of the contract by more than ten pe.rcent of the original price, a procurement entity shall inform the appropriate tender review committee" in the case of a contract subject to review by the tender review committee 100 of the proposed exte.nsion, modificationor variationorder withreasons. (2) In the case of contnlctswhich aro not originallysubject to review by a tender ~eview commiltee 101, a proposedmodificationof contract which will make the revised contract price exceed !he procurement method "Sw.titutod by section47rJthePulfacProcuroment (Amendment)Ad.2016(Act914). "SUbstituledbysedlon48of thePublicProcurement (AmendmcnQAct,2016(Act914)., ICCSUbs~hl!edbysection48 ofthePublk:Procunlmenl Ad.2016(Ad914). (Amendment) byS<Xlllon 101Substl11J1od 48 ollhePubllcProcuremeiil NJ..2016(Ad914). (Amendlnenl) 74 threshold or the threshold of the procurement entity shall be cleared with the appropriate tender review committee 101. Request for mformation by the Board 88. A proc'uremententity shall provide the Board with the information that the Board m~y require in writing, regarding procurement. engaged in by the procurement'entity. ' Investigation by the Board 89, (1) The Board may appoint a person to conduct an investigation into a .• matter related to the conduct of procurement proceedings by a procurement· entity, or the- conclusion or operation of a procurement contract if it considers that an investigation is necessary or desirable to prevent, or detect a contravention of this Act (2) An investigator may, subject to subsection (3), (a) at any time during normal office hours, without previous :notice, enter the premises of the procurement entity tenderer, \supplier, contractor, consultant or any other person 103 !concerned with the procurement- --proceedings under . investigation; : .• (b) .r~quirean officer, employee or agent of the J>I~c~~ent enti~ .. o~ tenderer, supplier, contractor, consultant or cny other 'person 104 to produce any books, recoras, accounts or ·'·• , ·'" '·' .;docum'ents· • ' ' (c)·search premises for any boolcs, records, a~dimts Or •a9curnents; • •• • •{d):'examine and make extracts from and copies of books, records, • ~ accounts or- documents of the procurement cnti7o, tenderer, ,. : • , .;supplier, contractor, consultant or any other per.son 05;. . . ., ' (e).:remove • books, records, • accounts· .or ·-documents af the • , ,- • ·-procurement enti~ tenderer; supplier, contractor, consult;mt·0,• tany other person 1 for as long as may be necessary te examine .. . · Ithem or make extracts from or copies of them, but the ,., SubstiMtld sedkin Nb!fc by 48of the ~ni 2016 (~merit) A;;i. (Act914j.• • .-. ~ . . ~·· _._.·.. -''" lnseftcdbysecljon49 ofthe P\JbTicProcuremei-~ ~ 2016(Ad (Amendillcnt) 914i4)1;-· . .,.~~c...· --~.;;..:c.. __ 104 lnsl!l'~mon 49 ofthef'llbl'IC 16 (Ad914)• ...... Procurement-{Ameru4nen!IA?t;20 ,as lnsccted~section ~aol lheP\JbiicProcurement Ad.2016(Ad914). (An)endment) ,.. Insertedbysectim . 49 . oithe'PlibficProcurement . (Amendment)M,. 2016 .. (Ad914). 75 . investigator shall give a detailed receipt for the books, records, ,accounts or documents removed; (I) •require an officer, employee or agent of the procurement entity :'.or tenderer, supplier, or contractor, consultant, or any other ;person107 (i) to explain an entry in the b'ooks, records, accounts or documents; (ii) to provide the investigator with· information -concerning the managemeht or activities of the • procurement entity or tenderers as may be reasonably required. (3) ~e powers of entry and search confetred by subsection (2)(a) and (c) of this section shall not be exercised except with the consent of the procurement ..entity or tenderer, supplier, contractor, or consultant concerned or of the ~rson in charge of the premises unless there are reasonable grounds to believe that it is necessary to exercise those powers for the preyendo_n,ip_y_estig![tion or detection of an offence.Qr to obtain evidence relating to anoffence. (4) A . person who, without just cause, hinders or obstructs an investigator in 'the performance of a function under this section commits an offence and is liable on summary conviction to a fine not exceeding five hundred pen1;1lty units or a term of imprisonment not exceeding two years or to both the fiF,and the imprisonment Procedures on completion of investigation 90. (1) Ah investigator shall forward a copy ofihe in;estigatio'n report to the Board ! (2) fhe Board shall afford a person adequate opportunity to make representatid17sin a matter, before taking an action in terms of s,ubsection (3) which m<ty·adversely-alter-the-rights-orproper'ty-ofthatperso . ·---· (3) !]ie B(!ard shall, if satisfied that ther_ehas been a contraventio': of a provision of this A ct or any other-'enactment i'n relation to pr<Xurement p'rocee/f°,;gs; ·or p.rocurement contracts, take action to rectify' the " ••,.,. • t 1 \ w} 11c ·con,raventton 'ton s'IIa,·t i'lc • j,I ztc1 t fuae• • • ',, (a) annulment of the procu;ement'proceedings; ' .1"'Insertedby'seclioo 49 ollhePIJblfc·Procurement (Mlill)dlllllllltAct,1016'(Act 914)·-. -~------· - ' ;, ..•·."'·"... ~- ....• ... ,_ 76 (b) cancel/al/on of the procurement contract; (c) ratification of anything done In relation to the , proceedings; or I (d) a declaration consistent with the relevant provisions of this ' Act.1oa • • Statutory audits 91. (1) Th~ Auditor-General shall conduct annual audits • of the procurement;activities of entities and shall furnish copies of reports on the audits to the Board on request from.the Board. (2) Th'e Auditor-General shall also carry out specific audits into the procurement\activities of entities and compliance by contractors, suppliers and consultants with the procurement requirements in this Act and Regulations made under this Act at the request of the Board. (3) The statutory audit of procurement activities may be relied on by the Board to institute measures to improve the procurement system. ) . 'Offences relating to procurement a 92. (1) A person who contravenes provision of this Act commits an offence and where a penalty is not provided for the offence, that person is illable on summary conviction to· a fine n.ot exceeding two thousand five •~htindred1° 9 p~nalty units or a term of imprisonment not exceeding five yea:rs or to both thd fine and the imprisonment ~e (2) ' following also constitute offences under this Act: ,, (a) entering or attempting to enter info a collusive agreement, •. ' ; whether enforceable or not, with any other supplier or contractor where the prices quoted in their respective tenders, P,roposals or quotations are or would be higher than wo~ld .have been the case has there not been collusion between the •l ,,I •persons concerned; . ► , , • _ , •• , ~/,4,irectly or in_direeUy. ~iicnd~g. irt_any~~r ~r att,emptiog ' • .. ; to· influence 'in any manner the procurement' p-rocess~oobtain 1 ' ,• • • an unfair advantage in' U:ie·award of a procurement contract; ' ' '.• .. (c)'altering a procurement document with intent to influe.nce the ••joutcome. of a tender proceeding and this includes but is not • ;limited to • - ------- 'i 101 .~bslituted ti)'s_ectlon 50orthePubllcProcurement (AmendmenQ Ad,:2()16 (ACI914). , °'&Jbslltuted 1 byparagraph (a)sedlon51ofthe~bile Procurement (Amendment) Act,2016(Act914).• 77 (i) forged arithmetical correction; and (ii) insertion of documents such as bid security or tax clearance certificate which were not submitted at bid , opening;and (d) request for clarification in a manner-not pe.rm.ittedunder this- Aet. (3) J)espite anything to the contrary in.an enactment, a person who· contravenes a Regulation made under this Act is liable on summary conviction to a fine of not mo;e than two thousandfive hundredpenalty units or to a term of imprisonmentof not more rhanfive years or to both.110 Corrupt practices 93. {l)'En~ities and participants in. a procurement process shall, in undertaking procurement activities, abide by the provisions of article 284 of the Constitu!jon. (2) An· act amounts to a corrupt practice if so construed within the • ,. •meaning of corruption as defined in the Criminal Offences Act, °1960(Act •29). - • ; Review of threshold levels 94: Repealed 111 Public·acccss to legal texts 95. The Authority.sbalfensure that administrative rulings and directives of general appl.icatiori' under this Act are promptly made availabl'e to· the public. 112 .I, r- , •••• • •··,- ..·, '~ ·.•, :·,. • .'> ' .,,,:,-., . • ~, Internation:it'ooligations ., • • ·• ,, - l . , ,. • . ,,;. .• .• .. :·:·· ://6~.(!)_P'!Sfi!e,.~he ~f.ent of ~h~J1f!f.l!~aliqn.,._.'1J. l~!s,_#,ff,Aa.,fhe proc.iiremeµt,proc!iremen( with i11ternaJjonal ·-pb_)jg/1l1fJJJ3=aris.!ffg::::fear,t-,g-- grant or-co1if-essionary loan·io the Govemment-sha!f,.be-i1t«1CG0Nkfr,ee-w,ut1"'h-- • ~~e,terms,of ihe grant or loan subject tp the pri01:review and "noo~jection" of p~op.11re1!1l'!.t py the A_uthority.; • "· ~ , . proqe_dure_f ~ 0 •• ,: . . , . -,(?) />-rocureme,:,1:-t1ri-sing-from-:::an-efJ!ternal-:loafl--<(l,:uJ--eom,m,erciul-- facility, secured by Government;-otherihantrc5ff<:es$i._ona]31-loarfa:iifd::.gr~ 1 0 ' Adde'd-,by paragraph{b) sedion51 ofthePubllcPtocutement(Amendrhent) Act.2016{Act914).•• . ~ ~pealedbyseclfon 52orthePublicProcurement Act.2016(Act914). (Amendment) 112Amended by~ 53 ol lhePubflcProcurement Ad, 2016(Ad 914)bythedele!!oa (Amendment) oL'chlef execul!Ye orthe'in'Une1. 78 which specifies particular procurement procedures shall be subject to the prior review' and "no objection" of those procurement procedures by the Authority. 113, Regulations 97. (l)The Ministe.r, in consultation with the Board, may make Regulations by legislative instrument to give effect to the pmposes of this Act. .. ,. • (2) ht'furthe~~ of subsection"' (1), the-~er· ~~e ~~y. Regulations (a). on the preparation and submission of tenders; (bJ;to provide for the ·manner of publication of the notice of procurement contract awards; (c);on the margin of preference in the evaluation of tenders; (lljion the preparation and submission of applications to prequalify !for tender; (e) on procurement proceedings on the basis of nationality; (/) on the procurement process where one entity or a specially • appointed agent is to procure items on behalf of another entity; (g) on the disposal of unservicea~le~tores an~o_bsoleteequipment; {h) to amend the sch~ules to this Act; (i) to review the ltr11elsof method thresholds or approval 'thresholds;114 and (j)1.l5 on any other matter connected with public procurement. (3) Reyiealed ll 6 Interpretation 98. In this ;Actunless the context other;wiserequires, . . ~ '! Auditor-General" includes an auditor appointed by the Auditor- __.Geneotl;__,....______ ~------.-- _ .,,. _ .. __ "Authority" means thi: Pttblic Procurement Authority established· by-section I; "Bo~• means the governing body ofthe-Auth.ority; "catastrophic event'' means a disaster of a national-propo!"6on; m Substitutedbyiedion54ol lhel'lltllicProcurement (AmendmenQ Act,2016(Acl914). 114 Inserted byparagraph (a)ol section55ol lhel'IJblicProcurement Act,2016(Act914). (Amenctncnt) 115Renumbered (b)d sedloo55ollhePu!lfoc !JY.paragraph Procurcmenl ~t) Act,2016{Act914). 11• Repealed (c)orsedlon55d thePulxoc byparagraph Procurement (Amendment) Act,2016(Act914). 79 "central management agencies" means the Public Services Commission, Office of the President and Office of the Head of Civi.1Service; "Commission" includes a commillee a11d an ad hoc body establishedfor a particular purpose; 111 "cdnfinner'' in relation to security means a person who or a bank which confirms letters of credit or bills; "cons~tancy services'' means services which arc of an intelkctual and advisory nature provided by firms or inclividoolsusing , their professional skills to study, design and organise specific : projects, advise clients, conduct lraini.ngor transfer knowledge; "consultant" means a person, natural or corporate, dealing in the provision of services including consultancy services; "contract administrator" means an individual appomted by the head:'lf. entity to administer a contract on behalf of the entity; 1 "court" means co,ur of competentjurisdiction; w "currency" includes monetary unit of account; "domestic conlractor" means, for the purpose of eligtbiliry for a 'margin of domestic preference under inten1ationa/ competitive /ender for Works, a contractor registered and incorporated under the laws of Ghana, having majority shareholding by 'Gha11a/a11s and not subcontracting more than 50 percent of the .total value of Works toforeign contractors:1ia "domestic supplier" means ·a citizen who is a supplier or a corporate body with Jl.majority shareholding owned b-ycitizens which is a supplier; "entity" means procurement entity; "framework agreement" means a long-term agreennnt wi(h suppliers, contractors and providers of non- twnsulting lervfces which sets our terms and conditions· ttnder which specific procurements (call-<Jjfs)ca,1 be made throvg~zoulthe term of the agreement. Framewot-kagreements are generally . based on prices that are either pre-agreed, or, deiefmined at- the ca/1-cff stage tlfrough competition or a•procus,al/owing 111lr:sMod17,pa1,t.""' (a) d secllon 56dthe Pulillcl'rocutemelll Act.2016(Adt14). (Amendment) 1111-ted (a)u secllon56dthe Pilblfc byparagiaph P!oairemcnt Act.2016(Ac1&1◄):- (Amendrnonl) 11t lnscrtcd 17,pilf.tglllj'1 (a) d section56d thel'ul6: Proalrement Ad, ~16 (Act91◄~ (AmondmenQ uoInsertedbypaagillj'1 (a)d sedlon56d theFllt6:l'n>cunimenl (Arnendmeni) Ad, 2016(Ad914~ 80 .. .. \ their revision withoutfi1rther competition: 121 "g!)ods" means objects. of every kind and description including lraw materials, products and equipment and objects in solid, \liquid or gaseous form, and electricity, as well as services •incidental to the supply of the goods if the value of those llincidental servi~ does not exceed that of the goods themselves; "g~vemance institutions" includes Regional Co-ordinating i Councils, District Assemblies, Metropolitan and Municipal .Assemblies; "head of entity" means in relation to • (i) the central managemen't agencies and •Ministries, the sector Minister; i (ii) subvented agencies, the Director-General, Executive j Director, Secretary or Chief Executive; ; (iii) the Regional Co-ordinating Councils, the Regional 1 Minister; ·; (iv) the District Assemblies, the District Chief Executive; , . (v)State Owned Enterprises, the chief executive oj]lcer;1 2 "key. ,staff" means important professional staff but excludes 1 support staff; . • "least.cost selection'\ means a,competitive method where quality •and cost are taken into account but the firm offering the least •cost is considered; "local content'' means a product originating.from the Republic; "locally registered supplier" means a business entity registered to . ;do business under the Companies Act, 1963 (Act J 79)/~ 3. . "Minister" means the Minister responsible for Finance; • - , ''njttional interest'' means a conilition where the nation attaches • high value, returns,-benefit and consideration to the matter in !,qµestion; . .• . ' • • "ntonal security" means a conilition where security tak~s priority Iover economic consideration and efficiency; • ; 121lnsefted (a)olsection56oflhePubllcProcuremcnl by paragraph (Amendment) Act.,2016(ACl 914). 112Inserted (b)olsect.ion by paragraph 56oflhePublicProcuromenl (Amendmenl) Act.,2016(ACI911), 113Inserted byparagraph (a)orsection56orthePubricProcuremenl (Amendmenl) Acl,2016{Acl914). 81 "one stop only" means in relation to the operating threshold the ,procurement entity seeks, concurrent approval for a contract award from one tender review board only; "perfonnance security" means a security guaranteeing the perfon:nance of a contract; "procurement contract" means a contract between the procuring entity and a supplier, contractor or consullllllt resulting from procurement proceedings~ "procurement entity" means an entity conducting public procurement under this Act; "p~ocurement unit" means the person or unit in the proeurement , entity that is dedicated to providing technical procurement •services for the tender committee; "professional body" means a body comprising members of a profession which is registered under the Professional Bodies Registration Act, 1973 (N.R.C.D. 143) or under any other enactment; . "promptly" means without delay;124 "public funds" include the Consolidated Fund, the Con.tingency Fund and any olher public funds established by Parliament; "public interest" includes a right or advan1agewhich enures or is intended to enure to the general benefit of the people of this .. cpuntry;11s .' 6 "quality andu cost based sc[ection" means a competitive method of combining quality and cost of services in the selection of a ~ ~g into consideration (a) the relative weight to be given to quality and the cost to be determined in each case depending on !he l\ature of the assignment. (b) the total score to be obtained by weighing ilie.quality and the cost score and adding them together, where the weight assigned to the quality and price is determined by the relative importance of quality in lhe assignment; "Regulations" means the relevant Regulations mad.cunder this "'lnsened byparagraph (a)of section56ollhePubicPn:lcu-oment JiD.. (Amendmenl) 2016(Ad914~ us meitedby pr.igraph (a)of sec:tion56olthe PUbllc ,C., 2016(AQ914~ Praueme,it (Amendmenl) 1'" lnscfledbypngr2ph (c)rJsecticn 56d !hoPublicProcuremem JiD.. {Amendment) 2016{Aa91◄). 82 Act; "security" means an amount to secure the fulfillment of any obligation of a contractor, supplier or consultant, wh.ich may talce the form of a financial deposit, a surety bond, or an irrevocable letter of credit; "selection procedure where price is ·not a factor" means selection which is made on technical quality only and where· price is : negotiated later; "sc'rvice" means the furnishing of labour, time, or effort not 1involving the delivery of a specific end product other than 'reports, which are merely incidental to the required •performance; and consulting, professional and technical , services but does not include employment agreements or •collective bargaining agreements; "socio-economicpolicy" means environmental,social, economic and otherpolicies of the Governmentw/,/chpromote,socialor economic impact,authorisedor required by the procurement regulationsor any other enactmenttaken into accowit by the procuremententity in procurementproceedings;127 "statutoryfand" means afimd establishedby Act of Parl//Jment;Ill "s\\bvented agency" m~ an agency set.up ~y GQ.vemmentlo pro'lide ,public .. service anq._.f4ianccd from public• funds , allocated by :Parliamel)tit) the annual appropi;iati,on; "supplier or contractor" means any pote.ntialparty or the party to a p.rocurementcontract with the procuring entity;· ''techhl~ services" means services. which - are 'tl:nde,ted .and con~ted on the basis of performance of a measurable physical output such as drilling, mapping, aerial photography, surveys, seismic ,investigations;--maintena.oce..ot:..facilitie.,,s..,- .~o ...__ c plant and similaroperations; . ••" , , , •• 13 "entiry'. tender committee" means the body within an entity with , responsibility for planning, processing, and generally_-takin_g l procurement decisions and ensuring compliance 'With the , 'public procurement law,·wnoog others; - - ---- --- - . "'~by paragaph (a)01sedl0n56 oflhe.Plibllc Procuremenl (~ Acl,2016(Acl~14). ., . . '-" Insertedbyparagrap!I 5601lhoPIJl)llc (8)c( sectiot'I bypatagri:ph(d)d s«1ion 119lnSC!C10CI . ,, . Ploc!Jfl!")lllll kt. 2016{Ad91◄), (An)cn4moi,t) 56ofIhaMlicPnx:unmcriUM¥!1ldme,,9 83 . ~ 2016(Act111~). - ~ .. '. "tenderer" means a person who puts in a bid in a procurement contract; "tender security" includes security provided to the procurement j entity to secure the fulfillment of an obligation under .this A.ct land arrangements suc;1t as bank guar:mtees, sm:ety _bo~s, Istand-by letters of credit, cheques on which a bank 1spnmanly : liable,.cash deposits and bills of exchange; "works" \ includes work . associated with the construction, .reconstruction, demolitio-n,repair or renovation of a building or •structure or surface and site preparation, excavation, erection, 'assembly, installation of plant, fixing of equipment and laying . out of materials, decoration and finishing, and any incidental :activity under a procurement contract; and "vehicle" includes a serviceable and unserviceable means of conveyancefor people and goods.1JO Repeal and ~avings _:~9. (l) Th~ following enactments _are hereby re-yoked or repealed as appropriate: j (a), The District Tender Board Regulations, 1995 (L.I. 1606); (bl-the Ghana National Procurement Agency. Decree, 1976 {S.M.C.D. 55); and (c) the Ghana Supply Commission Law, 1990 (P.N.D.C:L:245). {2) Despite the revocation and repeal of the enactments stated in subsection (1), the contracts, orders, decisions or anything made or done by a body which, ;until the coming into force of this Act, was charged with the perfoonance of any of·the futlctions under;this:Act is valid and shall continue to b'.ein force as if it was made or done ~der this Act. •. .(3) \Vp-erein the view-of the Board the continued validity of an act unoer • subsection I (2) is inconsistent with this Act, the 'Board may. take the appropriate qecision to rectify the inconsistency to the extent consistent -with this Act. ! (4) An'y tender review ••board and entity •tender committee that performed ,the· functions of an enJity· tender ~com11iitteeor tendir review board under the First and Second Schedules of the principal enactment are rec~rzstin,i.t.ed_ i_naccordance with the First and Fourth Schedules of this '. 130 Inserted byparagraph (a)of section56ol 1heP\Jblic Procurement·(Amendme<11) )\ct,2016(Ad ~14). 84 Act. m ! ' j l i i l "'Su~liMe:l by dcdloo57 ofthe PubllcPlocuremenl (Amendment) Act,2016(Act914). j 1 j 85 '1' Act 914 The P11blic Proa,n:menl(Ameruin,ait)Act, 2016 ''FIRSTSCllEDOLE (Section 20 a.nd 20A) CAlllGORJES OF £NIIIYTENDER CO.M.~Ul DIBS SCHEDlJLElA CATEGOllY A (SPECJAL CONSllTUIIONALBODJES) I. LegWarurc 2. 1udldary 3, Council of State 4. Buie of Glwla CATEGOllYB t Independent Coostitutiorw Bodies' 2. Offioe of the:President J. Ccnt:ral Management Ascncic:s 4. Ministries 5. State Owned Enterprises 6. R.egiorwCoardinatinaCouncil< 7. StatutOry fund m.inagemcnt bodies CIJEGOJU'C l. l:lc,d Office of subvcnted agencies and govemmcnt dq)a,1Jnents' 2. TeachingHospitals 3. 1atiary Insti1Uti0DSincluding autonomou. schools, iuslitutc$, collqics and ampu,es of universities. CA:CEGORYO l. Regional offia: of sulm::oted agencies and govcmmcot dc:pat1mcnts 2. Regional hospitals 3. Colleges• CAIEGORYE I. District office of subveotm agrndc:s and govmun<nl dcpuuncnts' 2. District hospitals 3. Second cycle M:hoolsor instillllions CA'll!GOR.YF I. Mcrropolitan Assemblies 2. Municipal Asscmb1la and Distria Assemblies (footno~) I. Cmgory Bl includes -Public Scrviocs Commission, National Development Planning Commission, Oflice of the:Bead of Civil Scrvxc,Electx>nlCommisfion, OJT,ceof lhc District As>cmblicsCommon Fund AdministtatOI',Commission On Human Rights and Administrative Jll>1ioe, National Media Commission, 1.andJ Commission and National Commission for Civic J!duation. 2. Category Cl, 01 and El indudes the: Ghana fdualion Scrviao, Ghana Hcalch Scrvia; Glu.m Polia, Service, Ghana Prisons Service, Gbano Immigration ScrviCIC,Ghana National F°U'CScr.;a,, Ghana Re>-.nucSc:ma: and the:Loa.I Q(MfllJllClltScrvioc. 3. Colleges-Training Colleges (Nwsing & Agriculturlll or similar Collcccs). 4. That a.re not d<:centralisedqmtmenu 42 SCHEDULB lB (ScctJo:n20) SCH. lB • COMPOSITIONOF ENTITYTENDERCOMMITTEES-M™ISTRIBS1 DEPAllTMBN'l'S& AGENCIBS 1B I CATBOOB.YA Item Legl$lature JudJduy Couii.dl ot State :Suk of Ghana l. CbatrpttJon 1 /.~(ffl 11)\,e IJIPQWtd\ly Judlclll Sc.crewy Governor die Pvll.lmcnwykt'llc.c loud Pint. Deputy Govemor 1, Memben Het.dor Plnuce Hud orFioana: Chi.cfDirector J Hedi o! Oe.panmeot A Justiceor a Supffio? Cowt Head or Finance Hetd or Lept Including a uur 3 Hucu or Oeparmmu, In- Dcputmenc 3 Heacuor Department A rcpruent.aliveor tbe Mlni1tfl' duding a u~er Department or Plrlance 2 Members of the J Mer= o!rclcV1.Dt Protea- R.epresentattve of lhc Offic Howe donal u .... Committee or I.hePtc•ld<nt I 1 Mc:mbcn of Head of Finance Prolhslon&lBodies 2. Members of ParUamc.nt I Departntencal Hud frorn telcvut Profculontl Bodie's 2 Mcmben or Profemonll Bod1u : ' Totll.l 9 9 1 9 meni.bushtp 3. Secretary Rnd of Procurement\Jnlt Hea.dof ProC\lrtmcnrlJnlt Headof ProcurementUnit Headof Proi:omnent Unit Quor:u111 Olairpcmn Md 4 mcmbcn Cbairpenonand 4 membez:s Q&frpcncmand 3 mcmbm. Chaupenon &nd-4mernb-eu 1ChalrpcnQ11S llLl1dal(~te 10 a mc:mt,~rori:hccntlry1crukr 1;0mmltt(c .i,ti i1d1I,n:qwrcd 1npmcumnc111 • Stlt(led Protmlooal 11oc1:1e1 1B2CATEGORY 8 ;lollllCoord1:.1!111; Covr.cU ilJtutoiy f'llndMlntitl:tnl lndtptKml Wn 1 lodlN Hudd~m KNddA',ill:e HadclUJII Oepal1/nlrj ·r ~ c:,,. ~ Idcltt ~nl/1 °'lll1ml MrbellclP-rdauionll 8cdet I nh~ 1>twa.'l1d~nl HaodD~ w::. ~ ,.:i,,. cl~lll!Oillbl Hud1 ~,•o,;a:tm.it 2U..:Sd Plilllllel'd AIOlltll'~I d fie J ;: ~ ~ lmtMPldfflbli ..t:t 8odf 11"3:0bh l'U ol~ 1 ~ t °' "~~ I~ llodiabxh»e<liw EdlJCllioclTMI Fwxl, ~ f~ Fand Mlnlce:i,cr• Expcd Dmlapr,c.al Fund llllillldlsln:illl ~ llllilnvtrnr.ent 183 CAT:EGORYC HetdOfflceofSubn bdAQtndasw Tn ' Kosph!s I Gf" ~rtmen!J I I. ~ I- t\ l l ~ r g ~ f 9 9 I t ~ ~ ,..t\ ~ .... °' •~ApaudG.mm:zitDcpr.:ai:siadcGbaUl.'almSam,~B;tfmScni:r.. Gl.uaPo5«Scnict, G;auti-Scm:t, ~ ... '¢ Gt.w~Sfflic:t.Ghm t~Sam,Gtw~·A~udl(Jaf~Scnb. ,- ... 184 CATEGORYD Item Regional office ofSubventad Regional Hospitals Colleges AgenciesandGovernment Department ChairpersonHeadofRegional Departmentor Regional Medlcal Prlnclpel/Head Mesler/ Headmistress or Govenvnent Aoencv SuoerlntendenUDlrector eoolvalent Members Head ofFinance HeadofFlnenoe HeadofFinance Attorney fromtheAttorney-General's Health Service Arepresentative Administrator oftheeppllcable Ofnce Regional Health Dlrectocate 3Heads ofDepartmentIncluding HeadofPharmacy Lawyer appointed byGoverningBody userDeoartment ARepresentative from theReglonalHeadofNursing 3HeadsofDepartment lncludlng user Co.-ordlnatlno Council Oef}artment Head Cllnlcal Attorney fromtheAttorney- General's Office Representative ortheRegional Health Directorate Representative oftheRegional Co-ordinating Council_ Seeretuy Head orProcurementUnR HeadofProooremenl Unit Head ofProcurement Unit Total 7 9 7 Membership - Quorum Chalroerson and3others Chairperson end4othe.rs Cihairperson and3others 185 CATEGORY E tem trictOffietol SMbVtnttd eoondary Schoots/ln1UtuUon1 es1ndGovernment int alrpet1on ic8l ~ t ~.~ Headmtst:m or ~ offinance Off'~ ~ g: ~polntedbygovemltlg body "'. .ii,. -..J fromUte Attomay inerat10ffp Attorney- Oeparlrnent user lndUdln; uveottt.O~Educa\ion I IhaOlst.dct I 'IC, ..~ ~ ..... ret,ry ofPtoCUremen Uni\ ofPrwuement Vmt °' 1 7 1 ~ .... 'C 11:1- ' ... .., SCHEOULE1C (Section 20) SCHEDULE 1C• COMPOSITION OFENTITY TENDER COMMITTEES-METROPOUTAN;MUNICIPAl ANDDfSTRJCT ASSEMBLIES A Item Metropol~n Assemblies Munlclpal Assembllu endDistrict Chairperson Metropolitan CnlefExecu~ve Municipal orDrsflict ChlefEl:eootiva • Members Dlrector ofAnanoe Ois!rtcl FtnanceOfficer ~ alofficerortheMetropol:tan I Assembly ora Legel offioer oftheMunlclpal andDistrictAssembly taw-1er appoo1ted bytheMe1lopoHan Assembly orlaw'/81 appixnte!i byDistrict Assembly 2·Ch:alrpessai'ls of 2Chaffpeoons oreomml!fees{\\IOfksfFlnence} ofcommittees (Woo;s/fu,anee) of ,;i. 00 theAssembly lheAssemb~ 2 Headsor DepmenlvrilhlntheMe!ropoiltan 2 Heads ofDepartmentv-;lbln Illedlstlict lodudlng As-sembfy 1 lncfud',ng userDepartment usetDepartment . Budget Officer Assembly ofUlaMetropolitan Oistrid Budget Officer Melfopoman Co-ordlnetlng D~eclOf D:Slnct Dlrect01 Co-oramafing Secretary ofPl'OCl!tement Head Untt . Head ofProairement Unit Total membership 9 9 Q· -- ., o--•-·-soni!·-''theis ' .Chair--·-,and' .,L 115 C t 1~,1 ~ATEGORY F I THRESHOLDS FOR MINJSTRIES, OEPARTMEN'TS ANO AGENCIES-APPRO'llNG AUTHORITY (Sections SECOi4D SCHEDULE 13,20,20,\,208and20C) ;l "::_i;, ~ ._. I Il Atoo8 Api"O',ingCot,90<"( Cate~:t'JC Ca!c;ort 01 c.:,9,ry ~• 1 'A11:ho1ily Cooo, Wo1cs S.Zr,ites Go:<ls Wo:lu Sel\~Ws Go:<Js wc,ts Sm·ces Oo:as W~rks· Sel\:leS ::: Cenl~I ~be),, AIXil-& Above Abm Al'<iv.i AbO\·e Ato,a Al:-0,e Ato,o >bc,e AhOVi Al>Oo1 TerMr 1,000,000 aoo.oJo 1,C00,0::0 i~.000,COD ?,W,001 ~V},OtJJ100.,0~ t:o.ooo ~co.0:-04C-O,OJJ 1.50).COO 2""0,fl',O ~ ::: R~e;• § CommiHee !!- fnlity AbOY9 AbDI'~ At<we AboM AIY.:·111 Ab~,e J..trNO' AtO\'e ·~ ;.o;;·•aAoo,e Ab!We ;;,· !! Ter.ter W0,000 SC0,000 100,000 1,-0.000 1~01.00, ICO,OC~ 4~.o~ 1v,ro~,~.000 30,COO.45,000 l0,000 .~ to Commr!tee lo lo lo lo \o 1¢ 1, 10 lo 1, ta' ::.. 1,000,000 1,000.000eoo.ooo 15,000.0CO 4:0.000 t:0,00) ~)0,0~) 000.C-OO 1,S-::0,000 2t0,0t() 400,000100,COO .R ~ Eolily llplo Upto Uplo Upl:, Uplo Upl" l!plo UplO U?b OjHJ U;10 U~I• 100,00, 500,000 100,000 100.COO 150,000 tC0,000 ;!5,000 7$,COO 4~.00~ )0,000 4~.000 ~.000 flead °' ::> ... r, I,., rri,Jtib ~ J~p(.'11~ «J~lt,iltc'O olrim ofA,11b1'(1"1trJ ilg:'!1:)',111ec111tmtJII Jbo,·: tlir 1ecioo1! t:'l!ll)':tlr.!(10:!!fr.mi,:~ itO!l◊h;(t(l\'.IIY 1tnkr (h1c1h,',jJh!lil:c t,1:1~!,:j'Y 1h,:11 -""' ~ THIRD SCHEDULE ' (Stctlons18,20,208,20Ctnd44} THRESHOLDS FOR REGIONAL COORDINATING COUNCILS ANDMETROPOLITAN, ~UNICJPAL ANDDISTRICT ASSEMBLIES APPROV1NG AUTHORITIES "WOWl!I CetegtwyF1 Ce!egolyf2 ~F3 ~ Rt;lo alCoordlnlUnJ Co 1 ,tropolllln A11mbtltt Atnmbllu unlclptl&Dltlrlct Goods w~ Sel\'ffl Good, Wcxts Scf\bs Goods WOfb Sel\tas ReglaNI Abr:Nt Aho'.-e M1INt NR,e »tJ'ie Abo"rl ~ Arntt #:llft Te.ndel 750.0001,000,000 700,000 550,000 760,000 ~.000 @,000 SS0,000 0),000 Re\l c«nm • EnUy Abova /;M{t »me Above ~ J:tme M,ove Above I Abavo en~ 100,000 150,000 100,000 75,000 125,000 75,000 00.000 90,000 $0,000 Co¢-'r.ee lo b lo lo lo b to lo 1o ]50,000 t,000,000750,000 550.000 750,000 •650,000 "°°·000 &50,000 .00,000 Enllty Uplo Uplo UpID Uplo Upio ~lo Ul)b Uplo Uplo Head 100,000150,000 100,000 75,000.00 125,000 75,00J • 50,000.00 90,000 50,000 'S~ett otlhe.Jttpor.1\ CotlK'J O>crd.inUi01 FOURTH SCHEDULE (Section 20F) COMPOSITION OFTENDER COM~mees REVIEW Item Central TinderR1\111wCommlt111 R1glon1I T1ndtrRevl1wCommltt11 Chalrponon An emnent personominated Anemlnent by thoMinister person nominatedbythoReglonal Minister 11soonslble rorAnanct Members 2publle aector penona ¥n1h conversant Regional Coor<lna~ng Dltec1ot procurementflC1n0ipln endprocedw&anomlna!ed . bvtheBoard 3 professionals ncmlnaled bylholn,Ututo of HeadoltheAttomey-Oenerel's Department Inlhoregion Englneera, lnaUMe ofChartered Accountants and lhelnslwteofSUrveyor1 - V, . Are?fesontatm Department oftheAttcrney-Oeneral'1 4pmate nomlnated Attorney, notbelow torJusllce Mlnls1or thorwofChief Stats bytheAltornay•Oeneral 1eetotpereons noninaled Institute bytheGhana Chartered and SurveyOC1, orPurch8slng lnsti1llte ofChartefed Ir,proewement withel(plrtence AacountantJGhana Ghana ofEngineers, lnstllule andSupptyand of lns!Jvte moect!vetv Arepmont.uve oltheNaflonll Omlopment Pl1Mln11Commlaslon,notbelow therankol . Director, nomlnatedbytheConmsslon ArepresonllUvo otlht Mlnlat,y ofFlnanco, not , below lherank ofDirector Total Membership 9 7 Seereta,y Arepreaontatlvt oftheMlnlstty ofFlnence not Reglonal E(onomfc Development Plamlng Oltlctr below therankorTeehnlcal Director, nominated by theMln!sler Quorum Chalrpenon and4Othll!I . Chalrpo110n and3others Act 914 The PublicProcurement (Amendment)Act, 2016 FIFIH SCHEDULE (Sections20,20A,20C,34A,42,44,66and 72) ~RESHOLDS FORPROCUREMENT METHODS Pn,cun,moi,t mt'!~ . Contnotvolut threstiold 1. 1ntema6onal Compelilive Tender AboYc GH¢10,000,000.00 a. Goods ' AboYc 15,000,000.00 GI-!¢ b. WO<i<s c:. Ted111i::al s..vices· "-""'.000.000.00 A/Jove 2. ~~voTendcr MomGianGI-¥ 100,000.00 upb GM¢10,000,000.00 a. Goods . b. WOO<$ Ulrc lhanGH¢200,000.00 upb GH¢15,000,000.00 c. TechnlcaSerdces MomlhanGH¢50,000,00 uplo Gll¢5,000,000.00 3. PmlOuobllon Upb GJ-¥100,000.00 p. Goods Upb GH¢200,000.00 b. Worlcs c. TedinlailServices Uplo GH¢50,000.00 Reslrldcd tender subject Boan! 1oapp<OValby 11>e ,. . Si,g!<! Md.selection Subjectlo~.b)' pc,)QJllf11tnl SO<Mte lheBoan! . CONSULT ANCYSERVICES- NOTHRESHOlD LIMITS 1. Quality BasedSelection ReferloPul:Aic Proarement Aulhocity forpnx;ed..., Manual • 2. QuatityendCostBjlscdSe!eclion Rc&!r b P\bllcl'rocuren)Cnl Aulhollty forprocecbe Manu;JI ii. COOsultanrs Qu;i&li:adon Reierlo l'llblicP~l Authority Manu'!f lo(~ 4. FixedMgct Seleclion Reierb PwllcProcurement Aulhocity Miinual lorprocewre 5. le.isl CostSeection Procu~I Aulhorit,Manual ReierloP\.iJlic forptOC8<Nf8 6. looividual Coosullanl Rc/c,loP\.iJllc Procurement Authority Manual forprocedure 7. SingleSource Subject lo Public Aulhority Proc:uri,ment Approval 52 ThePublicPrxuremmt (A.men~nt) Aa, 2016 Act 914 f""iniiaiii.ri .... -.o1ie0cp;;.i..,...;;,;;.-..o1,i;1n;;;-iosi"T-----------:-•~ • '· lot;Ill""""'..,_ - .,.,...,_.,,,,nc1 ._.,., -locotf. """"'"" In_,..,..,. be . IW<OATORY Pft£QIW..l'lCAT10N cotfTAAC'fVALUETmE5HOU) Goods AbM GI¢ 10,000,000.00 Wada AbM Gt, 15,000.0110,CO Todri:alSordooo I,._. GIi; 6,DCIO,OC0.00 I : 53 Act 914 Tiu:PublicProcurement(Ammdment}Aa, 2016

SIXTH SCHEDULE

SIXTH SCHEDULE (Sections 50 and 68) Standard Tender Documents and Standard :Requests for Proposals l. Standard tender document for procurement of works 2. Standard tender document for procurement of works, smaller con- traas 3. Standard tender document for roads • major 4. Standard render document for Toads - mmor S. Standard tender document for procurement of goods -- 6. Standard render !locument for procurement of health goods 7. Standard tender document for procurement of text books 8. Standard tender document for procurement of information tech- nology systems 9. Standard request for proposals.for selection of consultants 10. Standard doaunent for prequalilication of suppliers, consultants and contractors 11. Standard document for request for expression of interest 12. Sample format request for quotations 13. Disposal of stores, vehicles and equipment 14. Board of survey form/disposal certificate/destruction certifi.cate 15. Standard tender evaluation fofll'.)atand reporting format for goods, works and selection of consultants 16. Standard and sample cx:mtrncrsfor consultants services Complex time based assignments Lump-sum remuneration Small assignments time based payments Lump-sum payments.". OateofGautrenotification: 12.thMay,2016. OPCL. ASSEMBLY PRESS, ACCRA. OPCUAlJ6/l,J0OI0S/2016 Wcblkc:-www.ll\lKlbli.l~.com &-NU; il'lfo@ltsp~b~.,.COffl

Public Procurement Act, 2003 (Act 663)

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