Public Procurement Regulation, 2022 (L.I. 2466)

1. Environmentally compliant and sustainable procurement

2. Established commercial practice

3. Corporate manner of decision making by an entity

4. Role of head of entity

5. Restriction on role of head of entity

6. Role of head of entity in contract administration

7. Declaration of conflict of interest ProcurementUnit

8. Establishment and composition of procurement unit

9. Functions of procurement unit Entity TenderCommittee

10. Powers of entity tender committee

11. Restriction on powers of entity tender committee

12. Disclosure of interest by member of entity tender committee

13. Decision of entity tender committee

14. Restriction on of entity tender committee membership

15.Notice of meeting of entity tender committee Evaluation Panel

16. Composition of evaluation panel

17. Disclosure of interest by member of an evaluation panel

18. Evaluation of tender and evaluation report Review of TenderEvaluation Report

19. Review of tender evaluation report by tender review committee

20. Decision of tender review committee • ProcurementRules

21. Procurement plan

22. Environmentally qualified tenderer LI. 2466 2 PUBLICPROCUREMENTREGULATIONS, 2022

23. Qualification of joint venture or consortium 24, Recommendation to suspend a supplier, contractor or consultant

25. Prequalification proceedings for goods and works

26. Commencement of new tender process 27, Notice of acceptance

28. Publication of award of contract FrameworkAgreements

29. Use of framework agreement

30. Circumstances under which a framework agreement is appropriate

31. Types of framework agreements

32. Establishment of framework agreement RestrictedTendering

33. Number of tenderers in restricted tendering

34. Notice of award of contract for restricted tender 35, Withdrawal of approval for restricted tendering Single SourceProcurement

36. Application for single source procurement

37. Withdrawal of approval for single source procurement . Fees.ferRestrictedand Single SourceTender 1g. Application and processing fees for restricted and single source tender Requestfor Quotation

39. Procedure for request for quotation

40. Supplier database TenderingProcedures

41. Publication of invitation for national competitive tendering

42. Prequalification of tenderer

43. Compliance with standard tender documents

44. Use of standard tender documents

45. Provision of tender documents

46. Clarification, modification and submission of a tender document 3 L.I. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 TenderDocuments 4 7. Tender documents to be in English

48. Supporting documents to be in English Submissionof Tender

49. Loss or delay of a tender

50. Disclosure of details of a tender

51. Recording of details of tender

52. Tender securities TenderExamination and Evaluation

53. Opening of tender

54. Examination of tender

55. Verification of tender

56. Eligibility of tenderer

57. Completeness of tender

58. Substantial responsiveness

59. Groundsfor rejection of tender

60. Clarification, waiver and correction of a substantial responsive tender

61. Evaluation of tender oz.Margin of preference

63. Repeat tender qualification

64. Prohibition of negotiation with a supplier or contractor

65. Notice of acceptance of a tender Methods and Proceduresto Engage the Servicesof a Consultant

66. Default method for competitive selection of a consultant .u, 6 7. Notice of expression of interest

68. Shortlist of consultants

69. Criteria for the evaluation of proposals for the selection of a consultant

70. Choice of selection procedure

71. Receipt of technical and financial proposals

72. Evaluation of proposals LI. 2466 4 PUBLIC PROCUREMENT REGULATIONS, 2022

73. Selection procedure where price is a factor

74. Selection procedure where price is not a factor

75. Selection of individual consultant Complaintsand AdministrativeReview

76. Review by procurement entity

77. Contents of complaint for administrative review

78. Procedure for administrative review Disposalof Stores, Vehicles,Plant and Equipment

79. Authority to dispose

80. Period for disposal of unserviceable stores, vehicle, plant and equipment

81. Disposal by public transfer

82. Disposal by public tender

83. Disposal by auction sale

84. Disposal by destruction, dumping or burying MiscellaneousMatters

85. Publicaccessto legal text

86. International obligations

87. Useofprocurementagents

88. Interpretation SCHEDULES FIRST SCHEDULE Form IA - Declarationof No Conflictof Interest Form IE-Disclosure of Interest SECOND SCHEDULE Notice of AcceptanceFormfor Goods, Worksand TechnicalServices 5 LI. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022

THIRD SCHEDULE Notice of Contract Award FOURTH SCHEDULE Margin of PreferenceCn'teria JI FIFTH SCHEDULE Points for the Evaluation of Key Personnel in the Evaluation of a Consultant L.I. 2466 6 PUBLIC PROCUREMENT REGULATIONS, 2022 IN exercise of the power conferred on the Minister responsible for Finance and in consultation with the Board of the Authority by section 97 of the Public Procurement Act, 2003 (Act 663), these Regulations are made this 6th day of September, 2022. GeneralProvisionson Procurement Environmentally compliant and sustainable procurement 1. ( 1) A head of entity shall ensure that a tenderer complies with section 2 of the Act with regards to environmentally and socially sustainable procurement. (2) In furtherance of subregulation (1), the head of entity shall require a tenderer to comply with (a) the environmental protection laws and policies; and (b) policies on the promotion of sustainable development. Established commercial practice 2. The head of entity shall ensure that (a) the established commercial practice for procurement fa a verifiable practice for procurement; (b) the necessary procurement procedure is applied for a particular procurement in the context of the procurement; and (cJ the estaolished commercial practice does not detract ft..ottt any of the core objectives of procurement under the Act including (i) judicious and economic use of resources; (ii) fairness and impartiality; (iii) transparency; (iv) efficiency; and (v) environmental and social sustainability. Corporate manner of decision making by an entity 3. (I) In furtherance of subsection (2) of section 16 of the Act, a head of entity shall ensure that decisions on procurement are taken in a corporate manner by (a) undertaking procurement through the required procurement structure; and 7 PUBLIC PROCUREMENT REGULATIONS, 2021 (b) making decisions by (i) unanimous vote; or (ii) a simple majority vote. I (2) Where there is equality of votes, the chairperson shall have a casting vote. J Role of head of entity 4. (1) A head of entity may, when taking a procurement decision, takt'l' one of the following actions in respect of a tender evaluation report under consideration: (a) approve the tender evaluation report . (i) and initiate the process for corttract award within the specified threshold; or (ii) subject to clarification or amendment; (b) reject the tender evaluation report with reasons; or (c) refer the tender evaluation report to the appropriate approving authority for concurrent approval. (2) The head of entity shall, when taking a decision in respect of a tenderunderconsideration, (a) act in a manner that is (i) fair and candid; and (ii) in accordance with the due process of the Act and these Regulations; artd (b) ensure that the decision is not (i) arbitrary; (ii) capricious; or (iii) biased by resentment, prejudice ot personal dislik€', l,J Restriction on role of head of entity 5. (I) Subject to regulation 4, the role of a head of eritity in a procurement p:t-O<;ess is restricted to (a) the review and approval of a recotnme·ndation for a prod.lremertt contract award; LI. 2466 8 PUBLIC PROCUREMENT REGULATIONS2022 ' (b) participation as chairperson or a member of the entity in a meeting of an entity tender committee or tender review committee; (c) the review of a decision on a complaint with regard to procurement; and (d) the execution of a contract on behalf of the entity. (2) The head of entity shall not be a member of an evaluation panel.. Role of head of entity in contract administration 6. A head of entity shall ensure that (a) the contract administration aspect _ofthe procurement is outlined during the planning stage of the procurement process; (b) systems are put in place or instituted for monitoring contract performance and reporting (i) changes in scope and variations; (ii) processing of payments; (iii) resolution of claims and the settlement of disputes; (iv) termination of contract, if any; (v) contract records management; (vi) management of applicable securities, bonds and guarantees; (vii) evaluation of contract performance; and (viii) contract close-out. Declaration of conflict of interest 7. (1) A public officer shall not place himself or herself in a conflict of interest situation. (2) A conflict of interest exists where a public officer places himself or herself in a position where the personal interest of the public officer conflicts or is likely to conflict with the performance of the functions of that person as a public officer. (3) A conflict of interest includes the performance of a function of a public officer for personal gain or benefit, contrary to the obligation and duty of that person to act in the public interest. 9 LI. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 (4) The category of relationships that constitute a conflict of interest include a • (a) spouse; (b) sibling; (c) parent; or I · (d) child. J (5) The following persons are required to complete a No Conflict of Interest Declaration as set out in Form IA of the First Schedule: (a) a head of entity or a person acting for or on the instructions of the head of entity; (b) a member of an entity tender committee; (c) a member of an evaluation panel; and (d) a member of a tender review committee. (6) A person who becomes aware of a conflict of interest during the procurement process shall declare the existence of the conflict of interest in a form as set out in Form lB of the First Schedule. (7) Where a head of entity makes a declaration under subregulation (6), the functions of the head of entity under the Act and these Regulations shall be performed by the entity tender committee which shall nominate one of the members of the entity tender committee to chair the proceedings. (8) A person referred to in subregulation (5) shall not participate in the deliberations and a decision related to a particular tender in which that person has a conflict of interest, unless the eritity tender committee, the evaluation panel or the tender review committee decides otherwise by a majority vote. (9) A person who contravenes subregulation (8) commits an offence and is liable on summary convictionto a fine of not more than two thousand, l five hundred penalty units or to a term of imprisonment of not more than five years or to both. Procurement Unit Establishment and composition of procurement unit 8. (1) In furtherance of subsection (1) of section 19 of the Act, the head of entity shall constitute a procurement unit with a minimum of two members. LI. 2466 10 PUBLICPROCUREMENT REGULATIONS, 2022 (2) The head of entity shall ensure that the membership of the procurement unit comprises (a) the head of the procurement unit who shall not be the head of the entity concurrently; and (b) any person other than the head of entity, appointed by the head of entity.. (3) The Authority shall issue administrative guidelines to specify the educational qualification and years of experience required for personnel in a procurement unit. Functions of procurement unit 9. (1) The procurement unit shall assist the head of entity in the performance of procurement functions of the entity. (2) Without limiting subregulation (1), the procurement unit shall (a) co-ordinate and prepare procurement plans; (b) receive and review approved procurement requests to ascertain that (i) the proposed procurement is within the approved procurement plan; and (ii) budgeted funds are available for the specified procurement activity; (cJ ensure that funds are committed before the execution of a contract; (d) co-ordinate the preparation of the following documentation: (i) specification requirements; (ii) terms of reference; (iii) bills of quantities; (iv) drawings; (v) short-lists; (vi) advertisements; (vii) pre-qualification documents; and (viii) any other document required for the tendering process; (e) co-ordinate the process of opening of a tender; (f) prepare formal records of tender opening; (g) participate in evaluation activity of the panel; 11 LI. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 (h) co-ordinate the preparation of evaluation reports; (z) prepare submissions for approval of award by the appropriate authority in accordance with the threshold set out in the Second and Third Schedules to the Act; (j) maintain and update the database of suppliers, contractors and consultants; (k) participate in negotiations with consultants or other tenderers where expressly permitted in the Act or these Regulations; (I) prepare notification of awards and contracts; (m)arrange for the publication of notices of contract awards; (n) prepare and issue tender rejection and tenderer debriefing letters; (o) prepare contract variations and modifications; (p) assist with the inspection and acceptance of goods, works and services and where necessary, using a member of the user department to conduct a technical inspection; and (q) maintain records of the procurement process. (3) Theprocurement unit shall, in the performance of the functions of the procurement unit, liaise with (a) the originating officer, or (b) the end-user department that initiated the procurement, to ensure that the procurement meets the requirements of the tender. Entity Tender Committee Powers of entity tender committee 10. An entity tender committee may take one of the following actions in respect of a tender evaluation report under consideration: (a) approve the tender evaluation report in order to initiate the process for the award of the contract within the specified threshold; (b) refer the submission of the tender evaluation report to the appropriate approving authority for concurrent approval; (c) approv~ the tender evaluation report subject to clarification or amendment; or (d) reject the tender evaluation report with reasons in writing. L.1.2466 12 PUBLIC PROCUREMENT REGULATIONS, 2022 Restriction on powers of entity tender committee 11. An entity tender committee shall not (a) modify a submission that includes in particular, recommendations for a contract award; or (b) reject a submission without written justification. Disclosure of interest by member of entity tender committee 12. Where a member of an entity tender committee has a conflict of interest in respect of a specific tender, that member shall (a) declare the interest in the tender and complete a conflict of interest declaration form as set out in Form lB of the First Schedule; and (b) not participate in the deliberations or any decision-making process of the entity tender committee. Decision of entity tender committee 13. (1) A decision of an entity tender committee shall be made on the basis of a simple majority of votes cast. (2) Where there is equality of votes on a decision, the chairperson of the entity tender committee shall have a casting vote. (3) The result of the voting shall be recorded in the minutes of the entity tender committee with a statement of the reason for the decision maa~ ana suominea to the head of entity. (4) The secretary of the entity tender committee shall record minutes of each entity tender committee meeting which shall include (a) the record of attendance; (b) a list of each submission considered; (c) the decision made for each submission, that includes (i) issues discussed; (ii) the reasons for the rejection of a submission; (iii) clarification or amendment to which the approval is subject; (iv) conflict of interest declared by a member; and (v) dissenting opinion among the members of the entity tender committee. 13 L.I. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 Restriction on membership of entity tender committee 14. A staff of an entity shall not serve on the entity tender committee and an evaluation panel for the same procurement. Notice of meeting of entity tender committee 15. A head of entity shall (a) prepare an annual schedule of meetings for an entity tender committee; and (b) serve notice of the schedule on each member of the entity tender committee at the beginning of each year. Evaluation Panel Composition of evaluation panel 16. (1) A head of entity shall constitute an evaluation panel for a specific procurement as and when necessary. (2) The evaluation panel shall comprise a minimum of three persons and a maximum of seven persons who shall not be members of the entity tender committee with (a) at least one person with requisite knowledge of the matter to which the procurement relates; (b) personswith requisite experience of the evaluation of tenders generally and tenders of a similar nature in particular; and (C)personswho to the best of the knowledge of the head of entity, do not have conflict of interest in respect of the procurement. (3) The membership of the evaluation panel shall be selected from at least three of the following categories: (a) persons with the relevant technical knowledge of the subject matter of the procurement from within or outside the entity; (b) the end user department; (c) persons with procurement and contracting skills; (d) persons with financial management expertise; and (e) persons with legal expertise. (4) The head of entity may appoint a staff of the procurement unit as a member of the evaluation panel but a member of the entity tender committee shall not be a member of the evaluation panel. LI. 2466 14 PUBLIC PROCUREMENT REGULATIONS, 2022 (5) A member of a tender review committee shall not participate in the evaluation of a tender subjectto reviewby the tender review committee. Disclosure of interest by member of an evaluation panel 17. Where a member of an evaluation panel has a conflict of interest in an evaluation of tender, that member shall (a) declare the interest in the tender as set out in the Form IB of the First Schedule; and (b) not participate in the deliberationsin respect of that submission. Evaluation of tender and evaluation report 18. (1) An evaluation of a tender shall be carried out (a) solely on the basis of information provided by a tenderer in response to the evaluation criteria provided in the tender documents or request for proposal documents; and (b) without recourse to any extrinsic evidence or influence by a person, an entity or any other criteria not set out in the tender document. (2) An evaluation panel shall prepare an evaluation report for each evaluation conducted. (3) Each member of the evaluation panel who participated in the conduct of the evaluation shall sign the evaluation report prepared. Review of TenderEvaluationReport Reviewof tender evaluation report by tender review committee 19. (1) A tender review committee may take one of the following actions in respect of a tender under consideration: (a) approve the tender evaluation report in order to initiate the process for the award of a procurement contract within the specified threshold; (b) approve the tender evaluation report subject to clarification or amendment; or (c) reject the tender evaluation report with reasons in writing. (2) The tender review committee shall not (a) modify a tender evaluationreport that includesrecommendations for a contract award; or (b) reject a submission without the justification for the rejection. 15 LI. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 (3) The approval of the recommendation for the award of the procurement contract shall be made (a) only on the basis of information and evaluation criteria provided in the tender documents or request for proposal documents, and (b) without recourse to any extrinsic evidence influenced by personal or political preferences. (4) Where a member of the tender review committee has a conflict of interest in a tender, the member shall (a) declare the interest in the tender as set out in Form lB of the First Schedule; and (b) not participate in the deliberation or decision-making process of the tender review committee in relation to that tender. Decision of tender review committee 20. (1) A decision of a tender review committee shall be by (a) unanimous vote; or (b) a simple majority vote. (2) Where there is equality of votes, the chairperson of the tender review committee shall have a casting vote. (3) The result of the vote shall be recorded in the minutes of the n1.eeting of the tender review committee. (4) The tender review committee shall provide an explanation and justification of the reasons for a rejection of a tender evaluation report to assist the entity to remedy a defect in the submission before the tender evaluation report is re-submitted to the tender review committee. / (5) Each decision of a tender review committee that includes reasons 1~ for a rejection shall be recorded in the minutes of the meeting of the tender review committee and submitted in writing to the head of entity. (6) Except in the case of the Central Tender Review Committee, each written communication from a tender review committee shall be signed by the chairperson or by a person to whom responsibility is delegated. (7) The secretary to the Central Tender Review Committee shall sign each written communication from the Committee. L.I. 2466 16 PUBLIC PROCUREMENT REGULATIONS, 2022 (8) A tender review committee may withdraw concurrent approval granted to a procurement entity where the tender review committee establishes (a) that the information provided by the procurement entity, which formed the basis of the concurrent approval was falsified; or (b) the manipulation or misrepresentation of (i) qualification information; (ii) the offer price; (iii) the evaluated price; or (iv) the discount offer. (9) The tender review committee shall, before withdrawing a concurrent approval granted to a procurement entity, communicate the findings established under subregulation (8) to the procurement entity and the Authority: ProcurementRules Procurement plan 21. A head of entity shall take steps to align the procurement plans of the entity with the annual budget approved by Parliament, the Ministry of Finance or governing board as the context requires where there is a variation between the budget and the procurement plan of the entity. Environmentally qualified tenderer 22. (1) A tenderer is deemed to be environmentally qualified if the tenderer complies with environmental laws and policies. (2) An entity may specify the requisite documentation to be sut,,mitted in a tender to meet the requirements of an environmentally compliant tender. Qu.alification of joint venture or consortium 23. Where a tenderer is a joint venture or consortium of· firms, the tender qualification requirements shall specify whether the qualification criterion applies individually or collectively. Recommendation to suspend a supplier, contractor or consultant 24. (1) An entity that seeksto suspend a supplier,contractor or consultant shall submit detailed information on the basis of the recommendation to suspend a supplier, contractor or consultant to the Authority. 17 L.I. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 (2) The Authority shall, upon receipt of the request, (a) within ten days give notice in writing to the supplier, contractor or consultant of ( (i) the recommendation of the suspension; and (ii) the right to a hearing; and (b) request the supplier, contractor or consultant to submit a written justification as to why the supplier, contractor or consultant should not be suspended within fourteen days after the receipt of the notice. (3) The Authority may suspend a supplier, contractor or consultant from participation in public procurement for a period of not less than one year and not more than five years. (4) A decision by the Authority to suspend a supplier, contractor or consultant shall be (a) in writing; and (b) published on the website of the Authority. (5) The Authority shall, within five days after taking the decision, issuea noticethatindicates the·effectivedate and duration of the suspension to be served on the supplier, contractor or consultant. (6) A supplier, contractor or consultant shall not participate in any pu.bl~c procurement proceedings during the period of the suspension, butthesupplier,contractoror consultant shall continue the performance of a contractalready awarded. (7) The Authority shall (a) maintain a list of suspended suppliers, contractors or consultants; and (b) update the list monthly. (8) The Authority shall publish the list of suspended suppliers, contractors and consultants on the website of the Authority. Prequalification proceedings for goods and works 25. (1) An entity that pursues prequalification for goods and works shall consider (a) the size or complexity of the works; (b) the design of the equipment or industrial plant; and L.I. 2466 18 PUBLIC PROCUREMENT REGULATIONS, 2022 (c) the limited number of firms likely to meet the qualification to tender. (2) Prequalification proceedings shall not include (a) pre-registration; and (b) invitations to a potential vendor for the use of price quotation or the restricted tendering method of procurement. Commencement of new tender process 26. An entity shall not start a new tender process or re-start a tender process after the cancellation of a tender without a revision of the original tender document. Notice of acceptance 27. (1) Where a tenderer is successful, an entity ~hall issue a notice of acceptance as set out in the Second Schedule, to the successful tenderer, indicating an intention of the entity to enter into a contract with the tenderer. (2) A notice issued under subregulation (1) shall not be construed as the formation of the contract. Publication of award of contract 28. (1) An entityshall publish a notice of award. of contract as set out in the Third Schedule on the website of (a) the entity; and (b) the Authority. (2) An entity shall, -within four weeks of the signing of the contract, publish a notice of contract award for goods, works and technical services for a procurement method other than price quotation on the website of the Authority. (3) An entity shall publish a notice of contract award through price quotation annually. (4) An entity shall publish a notice of contract award for consultancy services not later than four weeks after the signing of the contract. Framework Agreements Use of framework agreement 29. (1) Where a framework agreement is envisaged in furtherance of paragraph (d) of section 34A of the Act, it shall be stated in the invitation for tender or quotation. 19 LI. 2466 PUBLIC PROCUKEMENT REGULATIONS,2022 (2) An entity may use a framework agreement for any of the following procurement methods specified in the Fifth Schedule to the Act: (a) price quotation; (b) national competitive tendering; (c) international competitive tendering; (d) restricted tendering; (e) single source procurement; or (/) any of the methods for the selection of a consultant. (3) A framework agreement shall establish the general terms that govern a procurement contract that may be awarded during a specified period and include the following: (a) the price, (b) the quantities envisaged, and (c) the terms and conditions applicable to the call-off contract. (4) A framework agreement shall be for a term of not more than three years in each instance. Circumstances under which a framework agreement is appropriate 30, Theuse of framework agreement is appropriate under the following circumstances: (a) where goods can be procured off-the-shelf or are of common use with standard specifications; (b) where the goods are frequently ordered basedon thesame or similar requirements, or set of specifications; (c) where technical services are of a simple and non-complex nature and may be required from time to time by the same agency or multiple agencies; (d) where the actual demand may not be known at the outset and delivery is to be made when a requirement arises; (e) where various sections or units of a procurement entity require the same items; (f) where different entities intend to procure the same goods, works or technical services and aggregating the demand could lead to a trade discount; (g) where no single firm is considered to have sufficient capacity to deliver the full scope of goods or services required; LI. 2466 20 PUBLIC PROCUREMENT REGULATIONS, 2022 (h) where vendor managed inventory is critical; and (i) where the product is of a critical nature to safeguard the quality of the product. Types of framework agreements 31. (i) A framework agreement may take the following forms: (a) a single supplier framework agreement; or (b) a multiple supplier framework agreement. (2) For purposes of subregulation(l), "supplier" means a potential party to a procurement contract with a procuring entity including a goods supplier, a works contractor and a technical services provider. Establishment of framework agreement . 32. (1) A framework agreement shall be established as the first stage of a two-stage contracting process and shall (a) be concluded after a tendering process in accordance with the Fifth Schedule to the Act to select contractors, suppliers or consultants to be considered at the call-off stage; and (b) involve the issue of a specific call-off contract to a contractor, a supplier or a consultant based on the terms established in paragraph (a). (2) For purposes of paragraph (a) of subregulation (1), (a) each offer shall be backed by a tender securing declaration in a form provided by the Authority which is valid for the term of the framework agreement; (b) the client shall have the option to debar a prequalifying contractor, supplier or consultant for the period specified in the tender securing declaration; (c) a competitive tender for a framework agreement shall be evaluated on the basis of the cost of estimated quantities to be procured during the contracting period; (d) the tendering process shall result in the selection of a single supplier or multiple suppliers to be considered for the award of a contract at the call-off stage; and (e) the framework agreement with the selected supplier shall be subject to approval in accordance with the Second and Third Schedules to the Act. 21 L.I. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 (3) For purposes of paragraph (b) of subregulation (1), where a framework agreement is signed with (a) a single supplier, the purchaser shall issue a call-off contract using the prices or pricing mechanism set out in the framework agreement or as adjusted by the agreed price adjustment 1 • formula, if applicable and any changes in legislation; and (b) multiple suppliers, the call-off contract shall be concluded through a secondary process. (4) The secondary process under paragraph (b) of subregulation (3) shall follow any of the following options as set out in the signed framework agreement: (a) competitive quotations through mini-competition; (b) direct selection based on location; and (c) direct selection based on balanced division supply. (5) A performance guarantee shall be provided for a call-off contract which is above the threshold for price quotation. Restricted Tendering Number of tenderers in restricted tendering 33. For purposes of restricted tendering in furtherance of section 38 of the Act, an entity shall invite a minimum of three suppliersor contractors and a maximum of six suppliers or contractors where the objective is to reduce the time and cost required to examine a large number of tenders. Notice of award of contract for restricted tender 34. For the purpose of subsection (2) of section 39 of the Act, an entity shall publish a notice of award of contract for a restricted tender on the website of the Authority within four weeks after the signing of the contract. Withdrawal of approval for restricted tendering 35. (1) Where a procurement contract is awarded and the Authority determines that the conditions under which an approval for restricted tendering was granted have not been complied with by an entity, the Authority may withdraw the approval for restricted tendering. L.I. 2466 22 PUBLIC PROCUREMENT REGULATIONS, 2022 (2) The reasons for the withdrawal of the approval include (a) misrepresentation; or (b) a change in scope of goods, works or technical services. (3) An entity that fails to comply with a condition under which the Authority granted an approval for restricted tendering and the non-compliance results in the withdrawal of the approval under subregulation (I) commits an offence and is liable on summary conviction to a fine of not more than two thousand, five hundred penalty units or to a term of imprisonment of not more than five years or to both. (4) The approval for the use of restricted tendering shall be deemed to have lapsed at the end of the applicable financial year on the 31st of December for Central Management Agencies, Ministries, Departments and Agencies and Metropolitan, Municipal and District Assemblies specified in Schedules IA and IB of the First Schedule to the Act. (5) Subregulation (4) does not apply to state-owned enterprises for which restricted tendering approvals shall lapse within one year of the date of the approval. (6) An entity shall (a) re-apply to the Authority to renew the validity of the approvalthat has lapsed; and (b) provide reasonable justification for the renewal. (7) The Authority .shallcharge an administrative fee for processing the renewal of the validity of the approval that has lapsed. Single SourceProcurement Application for single source procurement 36. (I) For the purpose of section 41 of the Act, an application for a single source procurement by an entity shall (a) provide appropriate justification corresponding to the provision that is selected under subsections (1) and (2) of section 40 of the Act; (b) provide the cost estimates of the proposed procurement; (c) provide an assessment of the cost reasonableness of the procurement; and •(d) state the applicable terms of the contract based on the Standard Tender documents listed in the Sixth Schedule to the Act. 23 LI. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 (2) An application for a single source procurement under subregulation (1) shall be supported by the following documentation: (a) the name of the proposed company; (b) the professional and technical qualifications and competence of the company; (c) evidence of the ability of the company to mobilise financial resources to undertake a project, where applicable; (d) equipment and other physical facilities of the company; (e) evidence of the managerial capability, reliability and experience in the procurement object and reputation of the company; (f) the personnel to perform the procurement contract; (g) evidence of financial solvency; (h) confirmation that the company has fulfilled the obligations of the company to pay taxes and social security contributions; and {t) a list of directors or officers of the company who have not (i) been convicted of any criminal offence related to their professional conduct; (ii) made false statements or misrepresentation as to their qualification to enter into a procurement contract within a period of ten years before the commencement of the procurement proceedings; or (iii) been disqualified due to an administrative suspension or disbarment proceedings. (3) The Authority shall respond to the application for use of single source procurement method within twenty-eight days after the receipt of the application. Withdrawal of approval for single source procurement 37. (1) The Authority may at any stage after the grant of approval for the use of single source procurement, withdraw the approval if the Authority determines that the conditions under which the approval was granted have not been complied with. LI. 2466 24 PUBLIC PROCUREMENT REGULATIONS, 2022 (2) The reasons for the withdrawal of approval by the Authority shall include (a) misrepresentation; or (b) change in scope of (i) functional requirement specifications of goods; -' (ii) works; or (iii) technical services. (3) Approval for use of single source procurement by the Authority shall be deemed to have lapsed at the end of the applicable financial year. (4) An entity shall re-apply to the Authority for approval for use of single source procurement where the approval has l_apsed. (5) The Authority shall charge an administrative fee for processing of an application for renewal under subregulation (4). Feesfor Restrictedand Single SourceTender Application and processing fees for restricted and single source tender 38. (1) The Authority shall publish on the website of the Authority feesapprovedby the Ministry responsible for Finance for the processing of applications for the use of restricted tender and single source procurement methods. (2) The application fee shall not be {a) prohibitiveso as to deter an entity from seeking approval for use of the restricted tender or single source procurement methods; or (b) passed on by the entity to the single source tenderer or the tenderer included in a restricted tender. Requestfor Quotation Procedure for request for quotation 39. (1) For the purpose of section 43 of the Act, an entity shall prepare a written request for quotation using the template for quotation issued by the.Authority. (2) The request for quotation shall include the necessary information to enable a tenderer (a) participate in the procurement proceedings; and (b) submit a quotation that is responsive to the needs of the entity. 25 L.I. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 (3) The request for quotation shall include (a) instructions on the conduct of the procurement process such as (i) the preparation and submission of quotation; and (ii) information on the evaluation of quotation and award of contract; (b) instructions on any documents required to be submitted with the quotation such as a (i) certified copy of the tenderers business registration or ownership; and (ii) tax clearance certificate; (c) a description of the goods, works or services required; (d) information on the methodology and criteria for the evaluation of quotations; (e) the form and type of contract to be awarded; (I) the applicable terms and conditions of contract· (g) information on the right of the tenderer to appe~l under the administrative review process; and (h) the policy of the Government on fraud and corruption that includes the suspension of a tenderer. (4) The minimum time period between a request for quotation and the deadline for submission of a quotation is seven days. (5) Where the value of the lowest evaluated tender is more than the threshold established in the Fifth Schedule to the Act for price quotation, the entity shall seek the approval of the entity tender committee before proceeding with the award. Supplier database 40. (1) The Authority shall publish on the website of the Authority a list of suppliers, contractors and technical service providers through any of the following procedures: (a) advertisement for the inclusion of qualified suppliers, contractors and technical service providers in the list of suppliers of the Authority; {b) credible data from other entities; and (c) market surveys and physical or online surveys. (2) The list of suppliers and the reasons for the inclusion of a supplier, contractor or technical service provider shall be kept by the Authority. LI. 2466 26 PUBLIC PROCUREMENT REGULATIONS, 2022 (3) The Authority shall update the list of suppliers at least, annually. (4) An entity may develop a database of suppliers for that entity from the list of suppliers published by the Authority. (5) An entity shall keep the reasons for the inclusion of a supplier, contractor or technical service provider in the database of the entity as part of the record of procurement proceedings. (6) An entity is not obliged to invite a quotation from a supplier, contractor or technical service provider included in the database of that entity. (7) A supplier to be engaged by an entity shall be registered on the database of suppliers of the Authority. TenderingProcedures Publication of invitation for national competitive tendering 41. (1) The requirement for an entity to publish an invitation for national competitive tendering in a newspaper of national circulation shall be satisfied by (a) a minimum of one insertion in at least one daily newspaper of nationalcirculation; and (b) •publication on the website of the Authority. (2) The period for the submission of a tender shall be calculated from the date of the first publication in a newspaper of national circulation or the day of first publication on the website of the Authority whichever is earlier. (3) Where the amount of the lowest evaluated tender for national competitive tendering exceeds the threshold .set out in the Fifth Schedule to the Act, an entity shall seek approval from the appropriate tender review committee before proceeding. Prequalification of tenderer 42. (1) For the purpose of sections 47 and 48 of the Act, an entity shall advertise an invitation to prequalify to tender for a specific contract or group of similar contracts in the same manner as a competitive tender. (2) The scope of the contract and a detailed statement of the requirements for qualification shall be provided in the qualification document to be made available to an interested tenderer. 27 LI. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 (3) An entity shall conduct a formal opening of applications for prequalification. (4) An evaluation panel shall undertake a formal evaluation of the capability of each supplier against the criteria stated in the prequalification document. (5) A tenderer who meets the stated prequalification criteria shall be invited by the entity to participate in the specific tender. (6) The entity shall inform each applicant of the outcome of a prequalification process and an applicant who fails to meet the prequalification criteria shall be given the reason for the failure, after which there shall not be any further correspondence with the applicant. Compliance with standard tender documents 43. For the purpose of section 50 of the Act, an invitation to tender and an invitation to prequalify shall be in accordance with the latest version of standard tender documents and standard prequalification documents issued by the Authority. Use of standard tender documents 44. Subject to section 50 of the Act, an entity shall seek the prior written approval of the Authority before using other standard tender documents of a development partner. frovision of tenderdocuments 45, (1) An entity shall ensure that the relevant tender documents are available to be issued to a tenderer before the tender is published. (2) The entity shall maintain adequate quantities of tender documents to ensure the availability of the tender documents until the deadline for submission of a tender for a particular procurement has lapsed. Clarification, modification and submission of a tender document 46. (1) For the purpose of section 51 of the Act, a supplier or contractor who requests for clarification of a tender document from an entity shall ensure that the request is received by the entity (a) in the case of a:national competitive tender, not later than ten days before the deadline for the submission of a tender; and LI. 2466 28 PUBLIC PROCUREMENT REGULATIONS, 2022 (b) in the case of an international competitive tender, not later than fourteen days before the deadline for the submission of a tender. (2) The entity shall respond to the request for clarification of the tender documents (a) in the case of a national competitive tender, not later than seven days before the deadline for the submission of a tender; and (b) in the case of an international competitive tender, not later than ten days before the deadline for the submission of a tender. (3) An entity may extend the deadline for the submission of a tender after receipt of a request for clarification of the tender documents and the issuance of a response to the request. TenderDocuments Tender documents to .be in English 47. Further to section 52 of the Act, an entity shall request a tenderer to 5upplythe following tender documents in English: (a) letter of tender; (b) completed schedules, priced bill of quantities, technical and financial proposals; (c) tender security or tender-securing declaration; (d) alternative tenders, if permitted by the requirements of the tender; (e) written confirmation that authorises the signatory of the tender to commit the tenderer; and (I) a copy of the joint venture agreement or the letter of intent to execute a joint venture agreement where applicable should the tender be successful. Supporting documents to be in English 48. (1) A tenderer shall submit an English translation of the following supporting documents to a tender where, the documents are not in the English Language: (a) corporate information of the tenderer; 29 L.I. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 (b) information on the qualification and capacity of the tenderer to perform the contract if the tender is accepted; (c) written information that establishes the eligibility of the tenderer to tender; (d) documentary evidence that any goods, materials and related services to be supplied by the tenderer are from an .eligible source; and (e) documentary evidence that the goods and related services conform to the tender documents. (2) The English translation of the supporting documents shall be certified by a licensed company that provides translation services. Submissionof Tender Loss or delay of a tender 49. An entity shall not be held liable for the loss or delay in the delivery of a tender transmitted by mail or courier. Disclosure of details of a·tender 50. An entity shall not disclose the number or identity of tenders received before the tender opening, except to a public official who requires the information as part of the official duty of that public official. R.ecordi:n. 0 of details of tender 51. (1) An entity shall record the receipt of a tender on two separate forms as follows: - (a) a form to record the details of tenders received before the deadline for the submission of a tender; and (b) a form to record the details of tenders received after the deadline for the submission of a tender. (2) A tender received after the deadline for the submission of a tender shall not be opened during tender opening but recorded as a late tender and returned to the tenderer unopened. (3) An entity that is unable to bear the cost of returning the tender to the tenderer may notify the tenderer by electronic mail or other correspondence and request the tenderer to arrange for the collection of the tender at the cost to the tenderer. LI. 2466 30 PUBLIC PROCUREMENT REGULATIONS, 2022 Tender securities 52. (1) For the purpose of section 55 of the Act, an entity may request for tender security in any of the following forms and in accordance with guidelines issued by the Authority: (a) banker's draft; (b) tender security form issued by a financial institution or msurance company; or (c) tender securing declaration signed by the tenderer, accepting that in the event of withdrawal or modification of a tender during the period of validity of the tender, the tenderer will be suspended for the period of time specified in the tender document. (2) A requirement for a tender security may be stated in the tender documents as a lump sum of money which shall be equivalent to an amount not exceeding two per cent of the estimated cost of the procurement. ~3) An entity shall not request tender security under the price quotat10n method (a) for goods, works and technical services; and (b) in the selection of a consultant. (4) In furtherance of section 55 of the Act, a tender security shall (a) conform to the requirements of the invitation to tender (b) accompany the tender; and ' (c) be consistent with the wording of the tender security form provided in the tender document. TenderExamination and Evaluation Opening of tender 53. (1) For the purpose of section 56 of the Act, the head of entity shall constitute a committee of at least three persons to oversee the tender opemng process. (2) The chairperson and two other members of the committee shall initial the tender and each attachment that includes any samples provided by the supplier. (3) A tenderer shall not amend the tender submitted in any way or provide any additional documents during the tender opening. 31 LI. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 (4) The tender opening process shall be conducted in one sitting and shall not be suspended or postponed after the process has started. (5) The record of tender opening shall follow the format provided in the standard evaluation format provided in the Sixth Schedule to the Act. (6) An opened tender shall be secured until the evaluation. Examination of tender 54. An evaluation panel shall examine tenders to determine the responsiveness of a tender in accordance with the verification, eligibility, tender security and completeness requirements in regulations 55 to 57. Verification of tender 55. Verification of a tender shall include the confirmation of (a) a signed letter of submission by the managing director or authorised representative of the managing director; (b) validity of tender; (c) a signed joint venture agreement, where applicable; (d) an authorisation from the supplier or manufacturer if the tenderer is an agent; and (e) any documentation required by the supplier or manufacturer. Eligibility of tenderer .56. (1) A tenderer is deemed eligible where (a) the tenderer is pre-qualified; (b) the tenderer and where applicable, members of a joint venture, are from an eligible country; (c) goods and services originate from an eligible country; and (d) the tenderer meets the statutory requirements provided in the tender documents. (2) An eligibility test for plant and equipment, shall be applied only to the finished product offered in the tender and to the major and clearly identifiable components of the product. Completeness of tender 57. (1) A tender that does not meet the qualification of a tenderer shall be considered non-responsive. L.I. 2466 32 PUBLIC PROCUREMENT REGULATIONS, 2022 (2) A tender may be rejected where (a) a page is missing in the original copy of a tender; and (b) there is a discrepancy in a model number or other designation of critical supply items. Substantial responsiveness 58. (1) For the purpose of section 58 of the Act, a tender shall be deemed to be substantially responsive where it meets the tender security, verification, eligibility and completeness requirements in regulation 52 and regulations 55 to 57. (2) A tender that does not meet the tender security, verification, eligibility and completeness requirements in accordance with regulation 52 and regulations 55 to 57 shall not be examined further by the evaluation panel. Grounds for rejection of tender 59. The following shall be grounds for the rejection of a tender during evaluation: • (a) failureby the tenderer to respond to the substantiverequirements of the tender; (b) submission of an alternative offer where the submission of the alternative offer is not permitted under the tender; (c) phasing of the contract start-up, delivery, installation, or constructionthat does not conform to the required critical dates or progress markers; (d) subcontracting a substantially different value or manner than what is permitted under the tender; (e) failure to assume a specific obligation or liability required under the tender such as the obligation for a performance guarantee and insurance coverage; and {I) failure to accept a key condition of the tender that includes r a provision on the applicable law, taxes, duties and the dispute resolution procedures. Clarification, waiver and correction of a substantially responsive tender 60. An entity may clarify, waive or correct a non-conformity, error or omission that does not constitute a material deviation where the tender is determined to be substantially responsive. 33 LI. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 Evaluation of tender 61. (1) Further to section 59 of the Act, the evaluation process of a tender shall follow the procedure set out in the instruction to the tenderer in the tender document. (2) A discount offered as a percentage of the tender price shall be applicable only to a priced item and not to an un-priced item such as a provisional sum, prime cost sum and contingency. (3) The evaluation panel shall prepare an evaluation report in accordance with the standard tender evaluation form as set out in the Sixth Schedule to the Act. Margin of preference 62. (1) A margin of preference as specified in the Fourth Schedule is allowed under national competitive tendering and international competitive tendering for goods and works for (a) a domestic contractor or supplier; and (b) domestically produced goods. (2) A margin of preference shall not be granted to a (a) domestic company wholly owned by a non-citizen; (b) domestic company owned in the majority by a non-citizen; or (c) a non-citizen supplier for the procurement of goods. Repeat tender qualification 63. (1) A repeat tender qualification shall be applied during the evaluation of a tender to confirm that the tenderer who submitted the lowest evaluated responsive tender is qualified to execute the proposed contract. (2) The qualification criteria for a repeat tender shall be the same as the qualification criteria indicated in the original tender document. Prohibition of negotiation with a supplier or contractor 64. (1) Except in the case of single sourcing, a procurement entity shall not conduct negotiations with one tenderer at a time to obtain a satisfactory contract. (2) The procurement entity may proceed to negotiate with the next ranked lowest evaluated tenderer only where negotiations with the first ranked lowest evaluated tenderer has failed. LI. 2466 34 PUBLIC PROCUREMENT REGULATIONS, 2022 (3) The negotiations may seek to review the scope of the contract in a manner that will have a positive impact on the expected outcome of the procurement without a change in the unit rates of the tenderer. Notice of acceptance of a tender 65. (1) The entity may issue a notice of acceptance for a tender but this shall not constitute a binding contract between the entity and the tenderer to whom the notice of acceptance is issued. (2) A notice of acceptance of a tender shall (a) be construed as an intention to negotiate a binding contract for the procurement; (b) include confirmation that the requisite warrant and where applicable, the purchase order generated from the Ghana Integrated Financial Management Information System have been obtained by the entity; (c) set out the terms and conditions to be complied with by the tenderer for entry into force of the procurement contract; and (d) state the deadline for the satisfaction of the conditions. Methodsand Procedures to Engagethe Servicesof a Consultant Default method for competitive selection of a consultant 66. (1) An entity shall apply the Quality and Cost Based Selection Method as the default competitive method for the selection of a consulting firm. (2) Other methods may be used where appropriate as prescribed in Part Six of the Act. Notice of expression of interest 67. (1) A notice of invitation for expression of interest shall be published on the website of the Authority and in a daily newspaper of nationwide circulation, for each competitive selection method that includes (a) quality and cost-based selection; (b) quality based selection; (c) consultant's qualification selection; 35 L.I. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 (d) fixed budget selection; (e) least cost selection; and (I) individual consultant selection. (2) The minimum time allowed for the submission of an expression of interest requested in a notice for a consultant shall be fourteen days after the date the first advertisement was published. (3) The evaluation of the expression of interest may be based on a descriptive assessment or the points based assessment of the following criteria: (a) general experience of the firm; (b) specific experience of the firm; and· (c) experience of key personnel. Shortlist of consultants 68. (1) In the case of the Consultant's Qualification Selection Method, the selection shall be limited to one consultant. (2) An entity that intends to use a single sourced consultant shall invitetheproposedconsultant to submit a technical and financial proposal for consideration before the grant of the approval for single sourcing by the Authority. Criteria for the evaluation of proposals for the selection of a consultant o?, (1) The normal range of points to be allocated for each '?riterion for evaluation and qualification of key personnel in the evaluation of a proposal shall be in accordance with the Fifth Schedule. (2) The proposed points may be adapted to specific circumstances and shall be indicated in the request for proposals. Choice of selection procedure 70. The method for the selection of each consultant shall be as provided in the Fifth Schedule to the Act. Receipt of technical and f'mancial proposals 71. (1) The head of entity shall constitute a committee to oversee the opening process for proposals. (2) The technical and financial proposals submitted to an entity shall be opened in the presence of a tenderer who chooses to attend. L.I. 2466 36 PUBLIC PROCUREMENT REGULATIONS, 2022 · (3) The committee shall examine the envelopes containing the technical and financial proposals to confirm that every requirement related to the marking and sealing of envelopes has been met and the envelopes have not been tampered with. (4) The committee shall sign the technical and financial proposals envelopes as received and place the envelopes containing the technical and financial proposals unopened in a secured room. (5) The financial proposals shall only be opened after approval of the technical evaluation report by the appropriate review body. (6) Minutes of the opening shall be (a) signed by the chairperson of the committee and the recorder; and (b) made available to the tenderers upon a written request. Evaluation of proposals 72. (1) The head of entity shall take delivery of the evaluation report and refer the evaluation report to the entity tender committee if the proposedcontractis above the threshold of the head of entity. (2) The entity tender committee shall deliberate on the technical evaluation report and refer the technical evaluation report to the appropriate tender review committee if the proposed contract is above the threshold of the entity tender committee. (3) The evaluation report shall be prepared using the standard evaluation format for the selection of a consultant published by the Authority. Selection procedure where price is a factor 73. (1) Price shall be a factor under the following selection methods: (a) quality and cost based selection; (b) fixed budget selection; and (c) least cost selection. (2) The entity shall invite the firms that passed the minimum technical score to the opening of financial proposals after the approval of the technical evaluation report. (3) The financial proposals shall be handed over to the evaluation panel for evaluation while the original is kept under lock and key. 37 L.I. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 (4) The evaluation panel shall carry out the evaluation in accordance with the criteria spelt out in the request for proposals. "i Selection procedure where price is not a factor 74. Price shall not be a factor under the following selection procedures: (a) quality based selection; (b) consultant's qualification selection; (c) single source selection; and (d) selection of individual consultants. Selection of individual consultant 75. (1) The selection of an individual consultant shall be based on the qualification of that individual. (2) The following processes shall be undertaken to determine the qualification of an individual consultant: (a) review of the curriculum vitae of the individual· (b) an interview; or ' (c) both a review and an interview as may be necessary. (3) The use of an individual consultant may be justified where (a) teams of personnel are not required; (b) additional outside professional support is not required; and (c) the experience and qualification of the individual are the major requirements. Complaints and Administrative Review Review by procurement entity 76. A complaint submitted to an entity shall contain the following information: (a) name, address, phone number and email of the contact person to receive communication and other notices; (b) a clear and detailed statement of the complaint with times and dates; (c) a statement of how the complainant has been adversely affected and the remedy or relief sought; and (d) any other relevant document and background information. LI. 2466 38 PUBLIC PROCUREMENT REGULATIONS, 2022 Contents of complaint for administrative review 77. For the purposes of subsection (1) of section 79 of the Act, a complaint for administrative review shall contain the following: (a) the name, address, phone number and electronic mail of the contact persons to receive communication and other notices; (b) a clear and detailed statement of the complaint with times and dates; (c) a statement of how the complainant has been adversely affected and the remedy or relief sought; and (d) any other relevant documents and bac~ground information. Procedure for administrative review 78. (1) The Authority shall, upon receipt of a complaint for administrative review, follow the procedure set out in subregulations (2) to (9). (2) The Board shall notify a participating supplier, contractor or consultant of the submission of a complaint and commence review proceedings of the complaint within fourteen working days after the date of receipt of the complaint. (3) The complaint shall be referred to the Legal and Administrative Revievv Committee which shall consider the complaint and make recommendations for consideration by the Board. (4) The Board shall constitute a Legal and Administrative Revievv Committee pursuant to section 7 of the Act to resolve complaints in accordance with section 80 of the Act. (5) The Legal and Administrative Review Committee consists of not less·than five and not more than seven members. (6) The Board shall determine the membership of the Legal and Administrative Review Committee. (7) The qualifications and expertise of the members of the Legal and Administrative Review Committee shall reflect the circumstances of complaints submitted to the Board. (8) The Legal and Administrative Review Committee shall operate in accordance with an operation manual approved by the Board within six months after the entry into force of these Regulations. 39 LI. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 (9) The Legal and Administrative Review Committee may convene a hearing to receive evidence from a relevant party as necessary. Disposalof Stores, Vehicles,Plants and Equipment Authority to dispose 79. ( 1) The board of survey constituted under subsection ( 1) of section 83 of the Act shall comprise a minimum of three persons. (2) The head of entity or any member of the entity tender committee shall not qualify to be a member of the board of survey of an entity. (3) The board of survey shall follow the procedures provided in the board of survey forms in the performance of the functions of the board of survey to deal with unserviceable, obsol~te and surplus items. Period for disposal of unserviceable stores, vehicle, plant and equipment 80. An entity may (a) subject to the prior written approval of the Minister, dispose of vehicles after seven years of use or two hundred thousand kilometres of travel, whichever is earlier; (b) dispose of computers, printers, photocopiers, scanners and other similar equipment after five years of use; and (c) dispose of construction plant and equipment after ten years of use. Disposal by public transfer 81. In furtherance of paragraph (a) of section 84 of the Act, the procedure for disposal by transfer to public entities is as follows: (a) recommendation by a board of survey for disposal by transfer to a public entity; (b) publication of an invitation for an expression of interest on the website of the Authority or in a newspaper of national circulation or both; (c) evaluation of expressions of interest and recommendation for transfer to a beneficiary entity; and (d) agreement with the recipient entity with or without financial adjustment, formal transfer of ownership and removal from the premises of the entity carrying out the disposal. L.I. 2466 40 PUBLIC PROCUREMENT REGULATIONS, 2022 Disposal by public tender 82. In furtherance of paragraph (b) of section 84 of the Act, the procedure for disposal by sale by public tender is as follows: (a) recommendation by a board of survey for a sale by public tender; (b) publication of invitation for tender on the website of the Authority or in a newspaper of national circulation or both; (c) evaluation of tender and recommendation for award; and (d) agreement with the recommended tenderer, formal transfer of ownership and removal from the premises. Disposal by auction sale 83. In furtherance of paragraph (c) of section 84 of the Act, the procedure for disposal by sale by public auction is as follows: (a) recommendation by board of survey for sale by public auction; and (b) auction carried out in accordance with the Auction Sales Act, 1989 (P.N.D.C.L. 230). Disposal by destruction, dumping or burying 84. In furtherance of paragraph (d) of section 84 of the Act, the procedure for the disposal by destruction, dumping or burying is as follows: (a) recommendation by a board of survey for disposal by destruction, dumping or burying; (b) approval obtained from the appropriate environmental agency; and (c) destruction, dumping or burying in accordance with guidelines of the Environmental Protection Agency. MiscellaneousMatters Public access to legal text 85. Administrative rulings or directives of general application sh"all be published on the website of the Authority within a maximum of fourteen days from the date of issue. 41 L.f. 2466 PUBLICPROCUREMENT REGULATIONS, 2022 . International obligations 86. The Authority shall respond to a request for review of a particular procurement procedure within twenty-one days after receipt of a request from the procurement entity. Use of procurement agents 87. (1) A procurement agent may be engaged under the following circumstances: (a) solely by a procurement entity or by procurement entities acting together to achieve the benefits of economies of scale for a particular procurement; and (b) for projects funded by a funding agency where the funding agreement requires the engagement of a procurement agent. (2) The procurement agent shall be engaged in accordance with the Act. (3) The agreement between the procurement entity and the procurement agent shall be lodged with the Authority. Interpretation 88. In these Regulations, unless the context otherwise requires, "conflict of interest" includes the exercise of the functions of a public official for personal gain or benefit, contrary to the obligation and duty to act in the public intere~t; "domestically produced goods" mean the productionof goods by a domestic supplier within the country; "electronic mail" means an electronic record used or intended to be used as a mail message between the originator and addressee in an electronic communication as provided in section 144 of the Electronic Transactions Act, 2008 (Act 772); "eligible country" means the list of countries from which suppliers and contractors are not restricted from submitting tenders for a particular procurement; "environmentally and socially sustainable" means the adaptation and integration of precautionary and social principles and considerations related to the environment in the decision- making processes; LI. 2466 42 PUBLIC PROCUREMENT REGULATIONS, 2022 "environmental protection laws" include the Environmental Protection Agency Act, 1994 (Act 490), the Environmental Impact Assessment Regulations, 1999(L.I. 1652)and guidelines issued by the Environmental Protection Agency; "established commercial practice" means practices and standards defined and codified by internationally recognised procurement associations and professional bodies; "evaluation panel" means a group of persons selected to evaluate tenders in accordance with the evaluation criteria stated in the tender document, and the preparation of evaluation reports for submission to an approving authority; "margin of preference" means a technique applied in the evaluation of a tender that permits the entity to accord a more favourable treatment to some suppliers or contractors or goods that are usually domestic suppliers or contractors or domestically produced goods in comparison with others· "material deviation" means variations in the requirements of~ tender which if accepted will not fulfill the purpose for which the tender is required or would prevent a fair comparison with tenders that are properly compliant with the tender documents and may be in the nature of (a) unacceptable time schedules, where it is stated in the tender document that time is of the essence; (b) unacceptable alternative technical details, such as design, materials, workmanship, specifications, standards or methodologies; or (c) unacceptable counterproposals with respect to key contract terms and conditions, such as payment terms, price adjustment, liquidated damages, sub-contracting or warranty; "notice of acceptance" means a written notice from the entity to a tenderer accepting the terms of a tender subject to the fulfillment of prescribed conditions prior to the entry into force of the procurement contract; "obsolete" includes any item of stores, plant and equipment which is rendered incapable of further effective use by development in technology, incompatibility with associated 43 LI. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 items or where the annual maintenance and breakdown costs can be certified to exceed thirty percent of the estimated cost of a new replacement item; "procurement agent" means a person or firm engaged by an entity to administer the procurement of specified goods, works and services on behalf of the entity in accordance with these Regulations and the terms of a written agreement; "procurement process" means the successive stages resulting in the procurement of goods, works and services including planning, choice of method, evaluation, award, and contract administration; "procurement structure" includes the head of entity, procurement unit, entity tender committee, the evaluation panel and the tender review committees; "responsive tender" means a tender that conforms to each term condition, and specification of the tender documents without' material deviation; "surplus" means any stores item which has not moved for a period in excess of two years or any item of plant or equipment which has remained unused for a period in excess of one year, and where no potential use for the item can be envisaged within the entity; "tender" includes a quotation and a proposal; "tender opening committee" means an ad hoc committee constituted by the head of entity to conduct the opening of tenders; "unserviceable" means (a) any item of stores, vehicles, plant and equipment that cannot be used for the intended purpose in its present condition and is beyond economic repair; and (b) classification as beyond economic repair which is determined on the basis that repair costs are certified to cost more than fifty per cent of the current market price of a new replacement item; and LI. 2466 44 PUBLICPROCUREMENTREGULATIONS, 2022 "user department" means the division or project unit of the procurement entity which initiates procurement proceedings and is the user of the goods, services or works procured. 45 LI. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022

FIRST SCHEDULE FORM lA - DECLARATION OF NO CONFLICT OF INTEREST (regulation 7(5)) Declaration of No Conflict oflnterest [pursuant to sections 4, 18, 19, 20A and 20F of the Act and regulation 7(5)] I, .............................................................. , (insert name) hereby declare that, to my knowledge, I have no conflict 9f interest in respect of any contractor( s)/ supplier( s)/ consultant (s) (deleteas appropriate)who has /have submitted a tender for this contract, including persons or members of a consortium, or subcontractor(s) proposed. I confirm that if I discover during the consideration of this tender that such a conflict exists or might exist, I shall declare it immediately to the Chairpersonof the ............................................. (*** insertnameof relevant committee, panel, board). In the event that such conflict is confirmed by the Chairperson, I agree to cease participating in the ....................... (*** insert activity) appropriate Date: .................................................... . Signature: .............................................. . • Position: ............................................... . LI. 2466 46 PUBLIC PROCUREMENT REGULATIONS, 2022 FORM lB - DISCLOSURE OF INTEREST (regulations7(6), 12(a), 17(a) and 19(4)(a)) Disclosure of Conflict of Interest by . . . . . . . . . . . . . . . . . . . . . . . . . (e.g. Head of Entity /Members of Evaluation Panel/Entity Tender Committee/Tender Review Committee/Public Procurement Authority Board (delete as appropriate)(pursuant to sections 4, 18, 19, 20A and 20F of the Act and regulation 7(4)) Date: .......................... . To the Chairperson of the ........................ (name of panel I committee) Address of Panel/ Committee Dear Sir/Madam, DISCLOSURE OF CONFLICT OF INTEREST FOR ................... . ................................(inserttendername and number) Theabove subject matter refers. I write to disclose that I have a direct/indirect interest in the above mentioned tender per section ........ of the Public Procurement Act, 2003 (Act 663) and regulation ......... of the Public Procurement Regulations, 2022 (L.I........... ). [INSERT DESCRIPTION AND NATURE OF INTEREST] I understand that conflict of interest under the Public Procurement Regulations, 2022 (L.I. .......... ) includes "the performance of a function of a public official for personal gain or benefit, contrary to the obligation and duty of the person to act in the public interest" or a relationship that includes a spouse, sibling, parent or child. I therefore withdraw from the procurement proceedings related to the above-mentioned tender under evaluation. Yours faithfully, [Name of Panel/Committee/Board member] 47 LI. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022

SECOND SCHEDULE NOTICE OF ACCEPTANCE FORM FOR GOODS, WORKS AND TECHNICAL SERVICES (regulation27(1)) NOTICE OF ACCEPTANCE OF TENDER (pursuant to section 65 of the Act and regulation 27(1) of L.I. ...... ) ( The letter should be in the form of the letterheadpaper of the Procurement Entity) ......................... [ Date ] To............................................... [name of the Supplier] •••... •••................................................. [address of the Supplier] Subject: Notice of Acceptance of Tender This is to notify you that your Tender dated ............................... for execution of the contract for ...................................................... . [name and identification number of the Tender] in the amount of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [amount in words], as corrected in accordance vvith the Instruction to Tenderers is hereby accepted. ThisNotice of Acceptance of Tender does not constitute the formation of contract. The formation of contract will be subject to the fulfillment of the following conditions: (a) Furnishing of a Performance Security in the amount of G H C. . . . . . . . . . . . [amount of PeiformanceSecurity in figures, i.e 5% - 10% [name of the successfulTenderer'sTenderPrice] and send it to us within twenty-eight (28) days of the receipt of this Notice of Acceptance of Tender. (b) Confirmation by the Client/Employer that the requisite expenditure warrants and where applicable, the purchase order generated from the Ghana Integrated Financial Management Information System have been obtained. ------------------- LI. 2466 48 PUBLIC PROCUREMENT REGULATIONS, 2022 (c) [Insert any other condition precedent to the contract]. (d) Signing of a formal contract . . You are hereby requested to proceed with the fulfillment of Performance Security and Signing of Contract within twenty-eight (28) days of receipt of this letter.· Failure to comply with the fulfillment of Performance Security and Signing of Contract within the time will constitute the grounds for forfeiture of Tender Security. If you so require you may proceed with the processing of the bank .guarantee for the advance payment (deleteif not applicable) Authorised Signature: ............................................................. . Name and Title of Signatory: ................................................... . Name of Agency: ................................................................... . Address for correspondence: ..................................................... . 49 LI. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 TlllRDSCHEDULE NOTICE OF CONTRACT AWARD (regulation 28 (1)) (Letterhead of Procurement Entity) NOTICE OF CONTRACT AWARD (pursuant to sections 31 and 39 (2) of the Act and regulation 28 (1)) IN PURSUANCE OF SECTIONS 31 AND 39. (2) OF THE PUBLIC PROCUREMENT ACT, 2003 (ACT 663) AND REGULATION 28 OF L.I. ........ TAKE NOTICE THAT THE .................................... . (insert the name of the project for goods/works/services) ISSUED ON .............................. (insert date of issue of tender) HAS BEEN AWARDED TO ........................... (insert the name of the contractor/ supplierI consultant that won the tender). Date: ··········•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• Signature: ............................................................. •••••••••••••••• Name: ............................................................................... . Title of Head of the Procurement Entity: .................................... . LI. 2466 50 PUBLIC PROCUREMENT REGULATIONS, 2022

FOURTH SCHEDULE MARGIN OF PREFERENCE CRITERIA (tegulation 62 (I)) [pursuant to section 60 of the Act and regulation 62] The margin of preference is an adjustmertt made to the tender price during bid evaluation for (a) a domestic contractor or supplier; or (b) domestically-produced goods. The objective is to make the tender price for domestic contractors or suppliers and domestically-produced goods more competitive during tender evaluation. The following price adjustments apply: 100% Ghanaian-owned supplier for Goods (a) a margin of preference of 15% shall be grantedduringtender evaluation; and (b) an additional margin of preference of 15% shall be granted for goods manufactured in Ghana or 10% for goods assembled in Ghana. 51% - 99% Ghanaian-owned supplier for Goods (a) a margin of preference of 10% shall be granted during tender evaluation for a supplier with a majority shareholding owned by citizens; and (b) an additional margin of preference of 15% shall be granted for goods manufactured in Ghana or 10% for go(Jds assembled in ·Ghana. 51 LI. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 Domestic Contractor for Works A margin of preference of 15% shall be granted during bid evaluation for a contractor registered and incorporated under the laws of Ghana, having majority shareholding by Ghanaians and not subcontracting more than 50 per cent of the total value of works to foreign contractors. Joint Venture between Domestic Contractor and Foreign Contractor for Works A margin of preference of 5% shall be granted during bid evaluation for a Joint Venture between a domestic contractor and a foreign contractor. Summary of provisions for Margin of Preference Goods Manufactured Assembled in Ghana in Ghana 100% Ghanaian-owned supplier 30% (15% + 15%) 25% (15% +i0%) 51% - 99% Ghanaian-owned supplier 25% (10% + 15%) 20%(10%+ 10%) Works 100% Ghanaian-owned contractor 15% Joint Venture between Domestic Contractor and Foreign Contractor 5% LI. 2466 52 PUBLIC PROCUREMENT REGULATIONS, 2022

FIFTH SCHEDULE POINTS FOR THE EVALUATION OF KEY PERSONNEL IN THE EVALUATION OF A CONSULTANT (regulation 69 {I)) Evaluation Criteria Points Spe~ific experience of the consultants related to the assignment [5-10] Adequacy of the proposed work plan and methodology in responding to the terms of reference [20-50] Qualification and competence of the key staff for the assignment including membership of professional bodies [30-50] Suitability of the transfer of knowledge programme (training) [0-10] (where Local participation as reflected by nationals applicable) among key staff presented by foreign and local consultants [10-15] Consideration of health, environmental, social, security and sustainability issues [0-5] Total Points 100 53 LI. 2466 PUBLIC PROCUREMENT REGULATIONS, 2022 KEN OFORI-ATTA Minister responsible for Finance Date of Gazette notification: 27 th October, 2022. Entry into force: 5 th December, 2022. GHANA "PUBLISHING COMPANY LTD., ASSEMBLY PRESS, ACCRA. GPCL/A004/450/01/2023 Website: www.ghanapublishingcompany.com E-mail: info@ghanapublishingcompany.com PRINTED BY GHANA PUBLISHING COMPANY LIMITED (ASSEMBLY PRESS), ACCRA Website: www.ghanapublishing.com E-mail: info@ghanapublishing.com Tel: 0302-664338/9