The Public Procurement (Amendment) Act no. 12 of 2018

1. This Act may be cited as the Public Procurement (Amendment) Short title Act, 2018, and shall be read and construed as one with the Public #" oo. Procurement Act, 2015, (hereinafter referred to as the “principal Act”).

2. Section 2 of the principal Act is amended—- Amendment of section 2 (a) in the definition of— of principal Act. (i) “international competitive bidding”, by deleting the words “that is not limited to national bidders” and [No. ] The Public Procurement (Amendment) Act, 2018 substituting therefor the words “that does not restrict the participation of any supplier”; (i) “invitation to bid”, by deleting the words “or approved unregistered suppliers”; (ii) “national competitive bidding”, by deleting the words “national bidders’ and substituting therefor the words “approved registered suppliers”; (iv) “open bidding”— (A) in paragraph (a) by inserting immediately after the words “a bid;” the word “or”; ; (B) by deleting paragraphs (b) and (c)and substituting therefor the following paragraph— “(b) in the case of national competitive bidding, any approved registered sup- plier is entitled to submit a bid; (v) “single-source procurement”, by deleting the words “specific supplier or specific approved unregistered supplier” and substituting therefor the word “supplier”; (b) d unregistered by deleting the definitions of “approve r”; supplier”, “bidder”, “offsets” and “supplie (c) by inserting in their correct alphabetical sequence the following definitions— * “approved annual procurement plan” means the procurement plan approved by the head of the procuring entity; “approved registered supplier” means a person, firm or entity registered under section 16; The Public Procurement (Amendment) Act, 2018 [No. ] “approved unregistered supplier” means a person, firm or entity approved by the Commission under section 18; “bidder” means a supplier who submits a bid; “bid security” means the bank guarantee or other form of security to be used in public procurement proceedings and submitted by a bidder together with a bid to secure the obligations of the bidder relating to participating in the procurement proceedings and the obligation to sign a procurement contract once the bid is accepted; “closed framework agreement” means a framework agreement ifi which a supplier is excluded from becomirig a party unless that supplier became a party, at the time of the making of the agreement; soa “domestic content” means g66ds, materials, components, services or labour originating from or made in Jamaica as may be prescribed; “domestic margin of pfeference” in evaluating bids and determintiig the successful bid, means the application’dfa préscribed increase on bid price in amannet favourable to an eligible bidder who is Jamaitan; at ye “eligible bidder” méans a person, fit Br entity eligible to participate in a public procurement process in accordance with section 32 of the Act; “Jamaican” or “from or made in Jamaica”, in respect of special and differential treatment measures— (a) inrelation to an individual, has the meaning assigned to it by the [No. } The Public Procurement (Amendment) Act, 2018 Constitution of Jamaica and the Jamaican Nationality Act; (b) in relation to a body, means a body— () constituted or registered under the laws of Jamaica; (iu) which has its registered office and central administration, and carries on substantial activity, within Jamaica; and (ui) in which more than fifty percent of the equity interest is under the ultimate effective control of or ultimate ownership by a Jamaican; “offsets” means any condition or undertaking that encourages local growth and development or which improves balance of payments accounts, including investment requirements, re- quirements for use of domestic content and the licensing of technology; “restricted bidding” means a bidding process in which a limited number of suppliers are invited to bid; “set asides” means the portion of the annual procurement budget of the Government of Jamaica contained in the approved annual procurement plan allocated for procurement proceedings for participation by categories of national suppliers as may be prescribed; “special and differential treatment measures” means measures, including domestic margins of The Public Procurement (Amendment) Act, 2018 [No. ] preference, offsets and set asides, applied to give special consideration to a class of suppliers and to provide incentives for the greater participation of disadvantaged economic actors; “supplier” means— (a) anapproved registered supplier; (b) anapproved unregistered supplier; and (c) any other person, firm or entity that is eligible to participate in procurement proceedings under this Act; “ultimate effective control” has the meaning assigned to it by section 2 of the Companies Act; “ultimate ownership” has the meaning assigned to it by section 2 of the Companies Act.

3. Section 5 of the principal Act is amended— Amendment of section 5 (a) in paragraph (g), by deleting the words “and approved of principal unregistered suppliers”; Act. (b) in paragraph (i), by inserting immediately after the words “participation of” the words “micro,”.

4. Section 7(1) of the principal Act is amended— Amendment of section 7 (a) in paragraph (c), by inserting immediately after the words of principal Act. “the conduct of public procurement” the words “, including the application ofspecial and differential treatment measures”; and (b) by renumbering paragraph (n) as paragraph (0), and inserting next after paragraph (m), the following— “() review and make recommendations for the establishment of framework agreements for procuring entities, including any modification as appropriate; and”. 6 [No. ] The Public Procurement (Amendment) Act, 2018 Amendment 5.—{1) Segtion 11(1) of the principal Act is amended— of section 11 of principal (a) in paragraph (c), by deleting the words “as suppliers and” Act and substituting therefor the words “as approved registered suppliers and”; (b) inparagraph (d), by deleting the word “suppliers” and sub- stituting therefor the words “approved registered suppliers”: and (c) by deleting paragraph (e) and substituting therefor the following— .“(e) subject to subsection (3), establish and maintain a register of approved suppliers, differentiated according to classification;”. (2) Section 11 of the principal Act is amended by inserting next after subsection (2) the following— (3) Subsection (1)(e) shall not apply in respect of suppliers oe other than approved registered suppliers and approved unregistered suppliers.” Amendment 6. Section 15(1)(a) of the principal Act is amended by deleting the 7 aa words “as a supplier” and substituting therefor the words “as an Act. approved registered supplier”. Amendment 7. Section 16 of the principal Act is amended by deleting— of section 16 0! f principal (a) the marginal note and substituting therefor the following— ct. “Registration of approved registered suppliers.”; and (b) the words “as a supplier” wherever they appear and substituting therefor in each case, the words “as an approved registered supplier”. Amendment’ 8. Section 18(2) of the principal Act is amended by deleting the ent words “a supplier” and substituting therefor the words “an approved Act. registered supplier”. oe The Public Procurement (Amendment) Act, 2018 [No. ] 9,. Section 20 of the principal Act is amended in paragraph (a), by Amendment of section 20 deleting the words “develop an” and substituting therefor the words of principal ' “develop and provide to the Office a copy of the approved”. Act.

10. Section 21(2) of the principal Act is amended by deleting the Amendment of section 21 words “the administrative guidance” and substituting therefor the words of principal “such administrative guidance as may be”. Act.

11. Section 23 of the principal Act is amended by deleting subsection Amendment of section 23 (5) and renumbering subsections (6) and (7) as subsections (5) and of principal Act. (6).

12. Section 24(2) of the principal Act is amended in paragraph (a) Amendment of section 24 by— of principal Act. (a) deleting the words “all known suppliers” and substituting therefor the words “as many suppliers as possible”; and (b) inserting immediately after the word “supplying” the word “competitively”. Amendment

13. Section 25 of the principal Act is amended— of section 25 of principal (a) insubsection (1)— Act. (i) in paragraph (a), by deleting the words “or approved unregistered supplier”; Gi) in paragraph (c), by deleting the word “or”; (ii) by renumbering paragraph (d) as paragraph (e) and inserting next after paragraph (c), the following paragraph— “(d) the time and cost involved in considering a large number of bids would be disproportionate to the estimated value of the procurement, or”; and (b) in subsections (3) and (4), by deleting the words “or approved unregistered supplier” wherever they appear. 8 [No. ] The Public Procurement (Amendment) Act, 2018 Insertion of 14. The principal Act is amended by inserting next after sectio n 25 23h, 258, the following sections— mE ; ; e nr - Manet: 25A. A procuring entity shall manage a selected 25G in ; em method of procurement by applying, in the manne r ioe ment prescribed, any of the following procedures— methods. (a) asingle stage bidding: (b) atwo-stage bidding; (c) a request for proposals, without negotiation; (d) arequest for proposals, with consecutive negotiation; (€) arequest for quotations; or (f) aframework agreement. Bidding in 25B. Where a procuring entity engages in procure- = ment by means of open bidding it may be conducted in a single stage or in two stages. Request for 25C. A procuring entity may engage in procure- shen ment by means of a request for Proposal without negotiation. negotiation if the bidding process is one in which the technical, financial and other criteria of each bid are evaluated, and the bids ranked accordingly, with the procurement contract being awarded to the highest- ranked bidder without negotiation. Request for 25D. Aprocuring entity may engage in procurement proposal with by means ofa request for proposal with consecutive consecutive negotiation where— negotiation. (a) the procurement subject-matter is complex; (b) the holding of negotiations is necessary in order to determine the commercial or financial aspects of the proposals due to The Public Procurement (Amendment) Act, 2018 [No. ] the need to consider multiple variables affecting the commercial or financial aspects of the proposals; (c) the variables affecting the commercial or financial aspects of the procurement— (i) cannot be precisely assessed; (ii) are incapable of specification by the procuring entity at the outset of the procurement proceedings; and (ii) can only be determined and agreed upon during negotiations; and (d) itisnot necessary to negotiate any non- commercial or non-financial aspect of the procurement. Request for 25E.—(1) Subject to paragraph (2), a procuring quotations. entity may engage in procurement by means of a request for quotations for readily available goods, works or services— (a) that are specifically produced or provided to the particular description of the procuring entity; and (b) for which thereis an established market. (2) Procurement by means of a request for quotations shall be— (a) limited to procurement by way of restricted bidding; and (b) utilized in the case ofa selection criteria based primarily on price. Framework 25F, Aprocuring entity may engage in procurement agreements. under an open framework agreement or a closed 10 [No. ] The Public Procurement (Amendment) Act, 2018 framework agreement in accordance with prescribed procedures. Splintering 25G. The head ofa procuring entity shall not— procurement to avoid (a) authorize a less competitive method of aa procurement than would otherwise have prohibited. been applicable to a procurement by a splintering ofa single procurement into separate procurements to— (i) artificially reduce the estimated value of the procurement; or (i) to apply a procurement method to any splintered part of the procurement, which would not have been applicable, had it not been for the artificial splintering of the procurement; or (b) to manage or administer a procurement by splintering a single procurement into separate procurements to avoid the proper application of the procurement method thresholds or the procurement contract approval limits under this Act.” Amendment 15. Section 31 of the principal Act is amended— of section 31 of principal (a) insubsection (1), by deleting the words “section 23(4)” and Act. substituting therefor the words “sections 23(4), 24(1)(b) and 25(1)(d)”; (b) insubsection (3), by deleting the words “in the matter referred to in subsection (1)” and substituting therefor the words “in the manner referred to in subsections (1) and (2); and (c) by inserting next after subsection (3), the following— (4) Inaccordance with subsection (2), a procuring oe entity may apply to a procurement proceeding any The Public Procurement (Amendment) Act, 2018 [No. ] 11 special and differential treatment measures as may be prescribed.”

16. Section 32 of the principal Act is amended by deleting— Amendment of section 32 (a) the marginal note and substituting therefor the following— of principal Act. “Eligibility requirements.”; and (b) the word “qualification” and substituting therefor the word “eligibility”

17. Section 38(2) of the principal Act is amended in paragraph (b) Amendment by deleting the word “offset” and substituting therefor the words of section 38 of principal “applicable special and differential treatment measures”. Act.

18. Section 44 of the principal Act is amended— Amendment of section 44 (a) in subsection (4)— of principal Act. @) in paragraph (a), by inserting immediately after the words “process;” the word “or”; (u) by deleting paragraph (b) and renumbering paragraph (c) as a paragraph (b); and (b) in subsection (5), by deleting the words “the the” and substituting therefor the word “the”.

19. The principal Act is amended in the heading for Part VI by Amendment of Part VI of deleting the words “, Review and Appeal” and substituting therefor the principal words “and Review”. Act.

20. Section 51 of the principal Act is amended— Amendment of section 51 (a) by deleting subsection (2); of principal Act. (b) renumbering subsections (3), (4), (5), (6), (7) and (8), as subsections (2), (3), (4), (5), (6) and (7), respectively; (c) in subsection (4), as renumbered, by deleting the words “subsection (1), (2) or (3)” and substituting therefor the words “subsection (1) or (2)”; 12 [No. ] The Public Procurement (Amendment) Act, 2018 (d) in subsection (5), as renumbered, by deleting the words “subsections (7) and (8)” and substituting therefor the words “subsections (6) and (7)”; (e) in subsection (6), as renumbered, by deleting the words “subsection (8)” and substituting therefor the words “subsection (7); (f) in subsection (7), as renumbered, by deleting the words “subsection (7)” and substituting therefor the words “subsection (6)”. Amendment 21, Section 53(2) of the principal Act is amended by deleting the of section 53 oc : of principal WOrds “section 51(3)”.2 Act. Amendment 22. Section 60(1) of the principal Act is amended— of section 60 ; to. of principal (a) by deleting paragraph (e) and substituting therefor the Act. following— “(e€) special and differential treatment measures;”; (b) in paragraph (g), by inserting immediately after the words “decisions by” the word “the”. Amendment § 23, Section 61(1) of the principal Act is amended— of section 6] of principal (a) inparagraphs (a) and (d), respectively, by deleting the words Act. “or approved unregistered supplier” wherever they appear; and (b) in paragraph (b), by deleting the words “cancelled or approved under this Act may be” and substituting therefor the words “cancelled, approved or”. Repeal and 24. ‘The principal Act is amended by deleting section 65, renumbering coe nc, section 66 as section 67, and inserting next after section 64 the following of principal SeCctions— au “Repeal of 65. The National Contracts Commission dational Contracts (Interim Provisions) Act, 2017, is repealed. « Commis- sion (Interim Provisions) Act, 2017. The Public Procurement (Amendment) Act, 2018 [No. ]} Amendment 66.—(1) The Financial Administration and alia Audit Act is amended by deleting section 19B and principal, | Substituting therefor the following— “Acquisition 19B. The acquisition of goods, of goods, —_ or services by, or the carrying out fe of any works for any department shall be governed by the provisions of the Public Procurement Act”. (2) The Financial Administration (Supplies) Regulations, 1963, are revoked. (3) The Public Sector Procurement Regulations, 2008, are revoked.”.

25. Section 67 of the principal Act, as renumbered, is amended— Amendment of section 67 (a) by deleting the marginal note and substituting therefor the of principal Act. following— “Savings and transitional provisions.”; (b) by deleting subsection (1) and renumbering subsections (2), (3), (4) and (5), as subsections (1), (2), (3) and (4); (c) in subsection (1), as renumbered, by deleting the word “commended” and substituting therefor the word “conumenced”’; (d) insubsection (4), as renumbered, by— (i) renumbering paragraphs (c) and (d) as paragraphs (d) and (e); and (ii) inserting next after paragraph (b) the following— “(c) the National Contracts Commission (Interim Provisions) Act, 2017;”.

26. The First Schedule to the principal Act is amended— Amendment of First (a) in paragraph 1(a) of Part A, by deleting the words “donated Schedule to principal by the Government of Jamaica to” and substituting therefor Act. the words “donated to the Government of Jamaica by”’; and 14 [No. ] The Public Procurement (Amendment) Act, 2018 (b) in Part B, by deleting the heading and substituting therefor the following— “Conditions for exemption of goods, works and services donated to the Government of Jamaica by a Non-Governmental Organization under Part A”, Amendment 27. Paragraph 1(2)(c) of the Second Schedule to the principal Act en is amended by inserting immediately after the words “Jamaica Bar principal Association” the words “or such other association as may represent Act. attorneys-at-law”’. Amendment 28. The Third Schedule to the principal Act is amended— of Third ee to (a) in paragraph 8, by deleting the words “to act in that behalf” ran and substituting thercfor the words “by the Chairman to signify _ the documents and decisions of the Review Board”; (b) in paragraph 9(2), by deleting the words “section 57” and substituting therefor the words “section 51”. Repeal of 29. The principal Act is amended by repealing the Fourth Schedule. Fourth Schedule. Passed in the House of Representatives this 15th day of May, 2018 with twerity- i three (23) amendments. FRANKLIN WITTER Deputy Speaker Passed in the Senate this 15th day of June, 2018 with three (3) amendments. THOMAS TAVARES-FINSON, CD, QC, JP President. The Public Procurement (Amendment) Act, 2018 [No. ] 15 On the 3rd day of July, 2018 the House of Representatives agreed to the amendments made by the Senate. PEARNEL CHARLES, CD, MP, JP Speaker. This printed impression has been carefully compared by me with the authenticated impression of the foregoing Act, and has been found by me to be a true and correct printed copy of the said Act. re . \abned Cutis Clerk to the Houses of Parliament.