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Ministry of Finance
(MoF)
CONTENTS
CHAPTER I GENERAL RULES .................................................................................................................... 8
Rule 1:
Rule 2:
Rule 3:
Rule 4:
Rule 5:
Rule 6:
Rule 7:
Rule 32:
Rule 33:
Rule 34:
Rule 35:
Rule 36:
Rule 37:
Rule 38:
Rule 39:
................................................................................................................................................. 24
Rule 40:
Rule 41:
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Rule 42:
Rule 43:
Rule 44:
Rule 45:
Rule 46:
Rule 47:
Rule 80:
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Rule 90:
Rule 91:
Rule 92:
Rule 93:
Rule 109:
Rule 110:
Rule 111:
Rule 112:
Rule 113:
Rule 114:
Rule 121:
Rule 122:
Rule 123:
Rule 124:
Rule 125:
Rule 126:
Rule 127:
Rule 128:
Rule 129:
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Rule 130:
Rule 131:
Rule 132:
Rule 133:
Rule 134:
Rule 135:
Rule 136:
Rule 137:
Rule 138:
Rule 139:
Rule 140:
Rule 149:
Rule 150:
Rule 151:
Rule 152:
Rule 153:
Rule 157:
Rule 158:
Rule 159:
Rule 160:
Rule 161:
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Rule 174:
Rule 175:
Rule 176:
Rule 177:
Rule 178:
Rule 179:
Article 1.
ANNEX-2: PROCEDURES FOR END USER AND COMMUNITY PARTICIPATION, RULE 5(1) . 88
Article 1:
Article 2:
Article 3:
Article 4:
Article 5:
Article 6:
Article 1:
Article 2:
Objectives ............................................................................................................................ 90
Measures and Programmes ........................................................................................... 90
Article 1:
Article 2:
Principles .............................................................................................................................. 92
Measures and Programme ............................................................................................. 92
Article 1:
Article 2:
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Article 13:
Article 1:
Article 16:
Article 17:
Article 18:
Article 19:
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(1)
These Rules of Procedure are issued in accordance with article 95 of the Afghanistan
Law on Public Procurement enacted in July 2008 as amended in January, 2009
(hereinafter the Law), for the purpose of establishing detailed rules and procedures
to fulfil the objectives and to implement the provisions of the Law.
(2)
These Rules apply to all procurement covered by the Law, in accordance with article
4 of the Law. Alternative or modified procurement rules may only be applied in the
case of-
(3)
(a)
(b)
(c)
Compliance with these Rules is obligatory for procuring entities and other
participants in public procurement.
Rule 2:
Effectiveness
These Rules shall be approved in Ministry of Finance and shall become effective on approval.
Rule 3:
(1)
Terminology
(2)
Award Authority means the person with authority to award a contract or approve a
contract modification, concerning the procurement of goods, services or works,
pursuant to provisions of the Law and the provisions of the Public Finance and
Expenditure Management Law.
(3)
(4)
Bidder means a legal or natural person, according to the provisions of the bidding
documents who, or whose legal representative; submits an offer and participates in
the procurement proceedings in accordance with provisions of the Law.
(5)
(6)
Circulars means circulars or guidelines issued by the PPU under the provisions of
Article 95(2) of the Law.
(7)
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Contractor is a successful bidder who contracts with the procuring entity to provide
goods, works or services.
(9)
(10)
Goods means objects of every kind including raw materials, products and
equipment whether in solid, liquid or gaseous form, as well as services incidental to
the provision of the goods provided the value of such incidental services does not
exceed that of the goods.
(11)
2009.
(12)
Non-consultancy services are any object of procurement other than goods, works
and consultants services.
(13)
(14)
Restricted Tender means the tendering method, provided by article 23 of the Law,
in which a limited number of bidders, which shall not be less than three (3), are
invited to bid.
(15)
(16)
(17)
Person is a natural or legal person including companies, firms, and the like.
(18)
(19)
(20)
(21)
Entity (Edaara) means any Ministry, independent head departments, state owned
enterprises other budgetary unit and also municipality, government companies and
mixed companies in which the share of the state exceeds twenty-five percent
(25%).
(22)
(23)
Procurement Policy Unit (PPU) is the central unit established within the Ministry of
Finance pursuant to Article 80 of the Law, for policy and professional development
and as a performance monitoring organ in the field of procurement.
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(24)
Public funds are the moneys or other financial assets defined in article 8 of the
Public Finance and Expenditure Management Law, and includes any monetary
resources appropriated to procuring entities through budgetary processes, as well as
extra budgetary funds including aid grants and credits put at the disposal of
procuring entities by foreign donors, and revenues of procuring entities.
(25)
(26)
Request for quotations means the document used to carry out low-value
procurement of standard goods or works or services, in accordance with the
provisions of the Law.
(27)
(28)
Request for proposals for Consultancy Services is the document package utilized
for procurement of, consultants services in which the procedures and conditions for
submission of proposals are described.
(29)
(30)
(31)
(32)
(33)
(34)
Rule 4:
(1)
The PPU, in consultation with other competent authorities, shall issue circulars on
measures and program for the promotion and facilitation of participation by small
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Procuring entities shall implement measures and programs for the promotion and
facilitation of participation by small domestic enterprises and individuals in
accordance with circulars issued by the PPU.
Rule 5:
(1)
The PPU, in consultation with other competent authorities, may issue circulars on
procedures for end user and community participation in the delivery of goods, works
or services. Such circulars shall be in accordance with Annex 2.
(2)
Rule 6:
(1)
The PPU, in consultation with other competent authorities, shall issue circulars on
environmental protection in public procurement. Such circulars shall be in accordance
with Annex-3.
(2)
Rule 7:
(1)
Pursuant to article 10 of the Law, the PPU, in consultation with other competent
authorities, shall issue circulars and guidelines on measures and programmes to
introduce the use of information and communications technology in public
procurement. Such circulars and guidelines shall be in accordance with the principles
set forth in Annex 4.
(2)
Procuring entities shall implement measures and programs to introduce the use of
information and communications technology in accordance with circulars and
guidelines issued by the PPU.
(3)
The PPU shall identify any required additions or amendments to the legal and
regulatory framework for public procurement to accommodate the application of
information and communications technology and shall promote their introduction.
(1)
Procuring entities shall prepare a procurement plan for each fiscal year, containing
the information required by rule 9.
(2)
(3)
Procuring entities shall submit their annual procurement plans to the PPU of the
Ministry of Finance by the end of the first quarter of each fiscal year.
(4)
Procuring entities shall revise and update their procurement plans, as appropriate,
during the course of each fiscal year.
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Rule 9:
(1)
The annual procurement plan for each procuring entity shall include:
(a)
(b)
(c)
(d)
(e)
(f)
(i)
(j)
(k)
Rule 10:
(1)
Rule 11:
(1)
Aggregation of Requirements
which items are of a similar nature and likely to attract the same potential
bidders;
(b)
when items will be ready for bidding and when delivery, implementation or
completion is required;
(c)
the optimum size and type of contract to attract the greatest and most
responsive competition, taking into account the market structure for the
items required;
(d)
(e)
which items will be subject to the same bidding requirements and conditions
of contract; and
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(f)
Rule 12:
(1)
(2)
(3)
(4)
(a)
bidders who are able to bid for some, but not all, types of item; or
(b)
small enterprises who would not be qualified to bid for the complete package
as a single contract.
(b)
(c)
(d)
where the award of several separate contracts would increase the costs of
servicing, maintenance or similar requirements.
permit bidders to bid for a single lot, any combination of lots or all lots; and
(b)
(b)
(c)
details of the funds budgeted for the requirement, including any funds yet to
be allotted or from future budgets for multi-year contracts.
(2)
In preparing the description of goods, works or services required, the end user shall
ensure that it seeks technical advice, where required.
(3)
In estimating the value of the goods, works or services, the end user shall ensure
that the estimate is realistic and based on up-to-date information on economic and
market conditions.
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(4)
(5)
Rule 14:
(1)
The Procurement Office shall ensure that adequate funds are budgeted and allotted
in accordance with article 12(1) of the Law, prior to initiating procurement
proceedings, taking into account all costs involved in the procurement. The costs
involved may, in addition to the total contract price, include the following:
(a)
(b)
(c)
(d)
the cost of any linked contract, which is necessary for the successful
implementation of the procurement, such as a contract for engineering
supervision of a construction contract.
(2)
The Procurement Office shall also ensure that adequate funds are available for
managing the procurement proceedings, including, but not limited to, any funds
required for publication of notices.
(3)
(4)
(5)
Where a Entity initiates procurement proceedings for a multi-year contract, which will
commit the Entity to make payments in subsequent fiscal years, the Entity shall:
(a)
(b)
ensure that funds for the current fiscal year are budgeted and allotted; and
(c)
ensure that funds for future fiscal years are included in budgets for
subsequent fiscal years and reported to the Ministry of Finance, without
prejudice to a reservation by the Entity in the contract of the right to cancel
subsequent years of the contract in the event the necessary funding is not
allocated in the budget.
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Rule 15:
(1)
(2)
(3)
Description of Goods
a list of goods and the quantities required, including any incidental services or
works, such as delivery, installation, commissioning, maintenance, repair,
user training or the provision of after-sales services;
(b)
(c)
specifications; and
(d)
drawings.
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
Rule 16:
(1)
(2)
Rule 17:
(1)
Description of Works
a description of the scope of the works, which may include, but not be limited
to design, construction or installation of equipment;
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(b)
(c)
(d)
(e)
(f)
(g)
(h)
Rule 18:
(1)
Description of Services
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(1)
(2)
(b)
the estimated value of the requirement and, where applicable, individual lots;
(c)
(d)
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(e)
(f)
an estimate of the time required for each stage in the procurement cycle,
taking into account publication requirements and the applicable approval
requirements;
(g)
(h)
(i)
(j)
(3)
Notwithstanding the provisions of sub-Rule 19(1), where the estimated value of the
procurement requirement is less than the amount stated in Rule 28, below which use
of the request for quotations method is permitted, no written procurement plan shall
be required.
(4)
Rule 20:
(1)
The procuring entity shall use the most appropriate type of contract from among the
types specified in Chapter VIII, Section B of these Rules.
(2)
The Procurement Office shall select the type of contract as part of the procurement
planning process, taking into account:
(a)
(b)
(c)
the need to maximise value for money and minimise risk for the Entity;
(d)
(e)
The Entitys ability to define its precise requirements, including the quantities
and delivery or completion dates required;
(f)
the need for effective contract administration and cost control; and
(g)
Rule 21:
(1)
Procuring entities shall select the most appropriate method of procurement for each
requirement, as part of the procurement planning process. The choice of the
Procurement Method shall be as provided in the Law.
(2)
(b)
the potential sources for the procurement, in accordance with Rule 22;
(d)
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(e)
(3)
The reasons for the selection of any procurement method other than open tendering
or request for proposals shall be clearly stated in the procurement record.
(4)
The Procurement Office shall obtain the prior approval of the Award Authority, for
the use of-
(5)
(a)
(b)
(c)
The approval required by sub-Rule 21(4) shall be obtained when seeking approval of
the procurement plan.
Rule 22:
(1)
Potential Sources
the competitiveness of the national and international market for the goods,
works or services;
(b)
the likely interest of potential national and international bidders, given the
size and nature of the requirement;
(c)
(d)
(e)
(f)
(g)
the need for compatibility or interchange ability with existing goods, works or
services;
(h)
(i)
(j)
Rule 23:
Emergency Procurement
(1)
(2)
Where the Entity uses restricted tendering on grounds of urgency in accordance with
the provisions of Rule 25(1)(c) or single source procurement on grounds of an
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emergency in accordance with the provisions of Rule 29(1)(c), the Entity shall limit
the procurement to the quantity needed to deal with the urgent circumstances.
Rule 24:
(1)
(2)
A procuring entity shall use the open tendering procurement method for all
procurement of goods, works and non-consultancy services, except where:
(a)
(b)
the estimated value is less than the applicable threshold for request for
quotations specified in Rule 28; or
(c)
the procurement meets the conditions for use of single source procurement
specified in Rule 29.
Rule 25:
(1)
(2)
An Entity may use the restricted tendering procurement method for goods, works or
non-consultancy services where:
(a)
the goods, works or services are only available from a limited number of
bidders;
(b)
(c)
Rule 26:
(1)
Tendering Variants
the goods, works or services are not available under competitive price from
three or more potential bidders in Afghanistan; or
(b)
(2)
(3)
(4)
Rule 27:
(1)
An Entity shall use the request for proposals proceedings for all procurement of
consultancy services, except where the procurement meets the conditions for use of
single source procurement specified in Rule 29.
(2)
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Rule 28:
(1)
(2)
(b)
works, where the estimated value of the procurement does not exceed the
threshold specified in Article 91 of the Law;
(c)
Rule 29:
(1)
Where the estimated value of the procurement does not exceed 3000 Afs, or
(b)
only one potential contractor has the technical capability or capacity to fulfil
the procurement requirement within the time required by the Entity or a
particular potential contractor has exclusive rights in respect of the goods,
works or services and no reasonable alternative or substitute exists, in
accordance with the requirements referred in article 24(1) of the Law; or
(c)
(2)
When the estimated value of procurement exceeds 3000 Afs the single source
procurement shall meet the conditions set forth in Rule 29(1) (b) or 29(1) (c) above
where the procurement is within the award authoritys threshold limits set out in
Article 91(1) (v) and 91(1) (vi) of the law. Where the single source procurement is
beyond the threshold limits of award authority and require approval of Special
Procurement Commission it should again meet the conditions set forth in Rule
29(1)(b) or 29 (1) c above.
(3)
Rule 30:
(1)
Two stage-tendering
any announcement shall clearly state that the tender is being conducted in
two stages and that only technical bids are to be submitted in the first stage;
(b)
the initial bidding document shall request technical information only and shall
contain outline details of the requirement, indicating any technical,
performance or contractual parameters to be met by bidders;
(c)
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(d)
following the initial evaluation, the Procurement Office shall finalize its
requirements and issue a revised bidding document to all bidders who were
substantially responsive to the initial bidding document, requesting both
technical and financial information;
(e)
the Entity may, in the first stage, engage in discussions with any or all
bidders with a view to understanding proposals or to indicate changes
required to make them acceptable and seek the bidders willingness to make
such changes.
(f)
the final evaluation shall consider all technical and financial aspects of the
bids, except where information provided in the initial bid does not need to be
resubmitted or re-evaluated.
Rule 31:
(1)
(2)
The procedures to be followed in conducting a design contest are set forth in Annex5.
Rule 32:
(1)
In accordance with the provisions of article 40 of the Law, the award of contracts
involving the private financing of infrastructure construction or rehabilitation, such as
Build-Operate-Transfer, the award of concessions and comparable forms of
contracting shall be subject to the special procedures set forth in Annex-6.
Rule 33:
(1)
(b)
(c)
(d)
(e)
(f)
(2)
The Procurement Office shall obtain the prior, written approval of the initiation
authority, which approved the procurement requisition in accordance with Rule 13,
before cancelling any procurement proceedings.
(3)
The Procurement Office shall prepare a written request for approval by the Award
Authority to cancel procurement proceedings, which shall clearly state:
(a)
(b)
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(c)
(4)
Where procurement proceedings are cancelled prior to bid opening, any bids
received shall be returned unopened.
Rule 34:
Unsuccessful Proceedings
(1)
(2)
The investigation shall consider all relevant issues, which may include, but are not
limited to:
(3)
(a)
whether the bidding period was sufficient, considering the factors listed in
Rule 53(5);
(b)
whether the requirements of the solicitation documents and the terms and
conditions of the proposed contract were reasonable and not so excessive as
to deter competition;
(c)
(d)
whether any shortlist included sufficient bidders and whether the bidders
included provide the goods, works or services required;
(e)
(f)
(g)
(h)
(i)
(j)
The Procurement Office shall make any appropriate recommendations, which may
include, but are not limited to:
(a)
(b)
(c)
(d)
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Eligibility of Bidders
(1)
(2)
The Entity shall clearly state the eligibility requirements in all solicitation documents
and shall, where it deems fit, require bidders to provide signed statements or
documentary evidence to certify their eligibility.
(3)
The Entity shall clearly state any documentation required as evidence of a Bidders
eligibility. This may include, but shall not be limited to :
(4)
(a)
(b)
(c)
a signed statement that the bidder does not have a conflict of interest in
relation to the procurement;
(d)
a signed statement that the bidder, or any of its directors or officers, have
not been convicted of any criminal offence relating to professional conduct or
the making of false statements or misrepresentations as to its qualifications
to enter into a procurement contract within a period of three years preceding
the commencement of procurement proceedings; and
(e)
Rule 36:
Qualifications of Bidders
(1)
(2)
The Entity shall clearly state any qualification criteria in the pre-qualification or
solicitation documents and shall, where it deems fit, require bidders to provide
signed statements or documentary evidence to certify their qualifications.
Rule 37:
Qualification Criteria
(1)
(2)
Qualification criteria shall be limited to those necessary for the effective performance
of the proposed contract and shall not be unduly restrictive or designed to reduce
competition.
(3)
Qualification criteria shall be prepared for each procurement requirement, taking into
account the size, complexity and technical requirements of the proposed contract.
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(4)
(5)
technical competence and resources, including, but not limited to, the
availability of sufficient manpower, the qualifications and experience of key
personnel or managers, available equipment, manufacturing or construction
facilities;
(b)
available capacity to perform the proposed contract, including, but not limited
to available manufacturing or production capacity, taking into account other
commitments or manufacturers authorizations to supply;
(c)
(d)
Rule 38:
(1)
(b)
(c)
Rule 39:
Database of Bidders
(1)
(2)
Database of bidders may also be used to register bidders who are eligible for any
scheme to promote small enterprises in accordance with Rule 4 or any preference
scheme.
(3)
In developing and maintaining database of bidders, the entity responsible for the list
shall comply with the requirements of Article 19 of the Law.
(1)
The Entity shall verify the qualifications of bidders where the successful completion
of the contract is, to a significant extent, dependent on the contractors
qualifications.
(2)
The Entity may verify the qualifications of bidders through either pre-qualification
proceedings in accordance with Rule 42 or post-qualification proceedings in
accordance with Rule 41.
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(3)
Bidders qualifications for consultancy services shall be verified as part of the short
listing process in accordance with rule 82, based on information provided in response
to notices seeking expressions of interest.
Rule 41:
Use of Post-Qualification
(1)
Post-qualification may be used to determine whether the bidder who submitted the
lowest evaluated responsive bid is qualified to perform the contract effectively.
(2)
(3)
Rule 42:
Use of Pre-Qualification
(1)
Pre-qualification may be used to restrict bidding to a list of bidders who have been
determined, in advance of the submission of bids, to possess the qualifications
necessary to perform the contract satisfactorily.
(2)
(b)
(c)
(3)
(4)
Rule 43:
Pre-qualification Announcement
(1)
Where the Entity conducts a pre-qualification pursuant to Rule 42, it shall publish an
invitation to pre-qualify notice, inviting all potential bidders to submit applications to
pre-qualify.
(2)
(3)
(a)
(b)
(c)
(d)
(e)
The invitation to pre-qualify notice shall be published in accordance with Rule 50.
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Rule 44:
Pre-qualification Documents
(1)
(2)
The Pre-qualification Document shall contain all the information required by Bidders
to prepare and submit applications to pre-qualify and shall include at least(a)
(b)
(c)
(d)
(e)
instructions on the sealing, labelling and submission of applications to prequalify, including the location and deadline for submission; and
(f)
(3)
The Entity shall allow a sufficient period of time, to enable bidders to prepare and
submit their applications to pre-qualify.
(4)
In determining the duration of the period for submission of applications to prequalify, the Procurement Office shall take into account the factors in rule 53(5).
(5)
The Procurement Office shall promptly respond to all requests for clarification, in
accordance with the procedure in Rule 56.
(a)
(b)
Rule 45:
Evaluation of Applications
(1)
(2)
The Procurement Office shall prepare a record of its evaluation of applications, which
shall clearly state which bidders were determined to be qualified and the reasons
why the rejected bidders were determined to be not qualified.
(3)
(4)
The Entity shall promptly notify each bidder submitting an application to pre-qualify
whether or not it has been pre-qualified and shall make available to any member of
the general public, upon request, the names of all bidders that have been prequalified. Only bidders that have been pre-qualified are entitled to participate further
in the procurement proceedings.
(5)
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Rule 46:
(1)
(b)
(c)
(d)
Procuring entities shall ensure that they have complied with all relevant requirements
of Chapter II of these Rules, prior to initiating tendering procedures for procurement
of Goods, Works and Non-Consultancy Services in accordance with this chapter.
Inviting Bids
(b)
from the list of pre-qualified bidders in the case of open tendering, where a
pre-qualification has been conducted; or
(c)
(d)
Rule 49:
(1)
(2)
(b)
(c)
(d)
(e)
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(f)
(g)
(3)
Where the funds to pay for the procurement have not yet been allotted, under the
procedure in rule 14(3), this shall be prominently stated in the invitation to tender
notice.
(4)
The invitation to tender notice shall be published in accordance with rule 50.
Rule 50:
(1)
Publication of Announcement
The invitation to tender notice, or the invitation to pre-qualify notice, shall be:
(a)
(b)
broadcast over the radio or television, on the stations and programmes and
at a time most likely to target potential bidders; and
(c)
(2)
(3)
Rule 51:
(1)
(2)
Shortlists
Where the Entity invites bids from a shortlist of bidders pursuant to Rule 48(1)(c),
the shortlist shall include(a)
(b)
(c)
(b)
(c)
(d)
(3)
Bidders shall not be included on a shortlist unless they are expected to fully satisfy
the Entitys requirements, including those related to eligibility, qualifications,
capacity, resources and experience.
(4)
The Bidders included on the shortlist shall not all have the same ownership. Where
there is more than one potential bidder but all potential bidders have the same
Page 28 of 106
Where the Entity uses restricted tendering on the grounds of a limited number of
sources, in accordance with Rule 25(1)(a), it shall also publish a notice, in
accordance with rule 50, which shall state(a)
(b)
(c)
(d)
(e)
(6)
The publication of the notice referred to in sub-Rule 51(5) is not required when
resort to restricted tendering is made on the grounds referred to in Rule 25(1)(b) or
25(1)(c).
(7)
The proposed shortlist shall be approved by the Award Authority, prior to issue of the
bidding documents.
Rule 52:
(1)
Procuring entities shall use the appropriate standard bidding document issued by the
PPU for drafting individual bidding documents.
(2)
The bidding documents shall provide bidders with all the information that they
require in order to submit bids that are responsive to the needs of the Entity. In
particular, the bidding documents shall include(a)
(b)
(c)
(d)
(e)
any qualification criteria in accordance with Rule 37 and verification of prequalification information;
(f)
(g)
(h)
(i)
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(3)
(j)
the terms and conditions of the proposed contract in accordance with Rule
141; and
(k)
(l)
any other information that might be required in accordance with the Law or
prescribed by the PPU.
Where the funds to pay for the procurement have not yet been allotted, under the
procedure in Rule 14(3), this shall be prominently stated in the bidding document.
Rule 53:
Minimum Bidding Periods
(1)
The bidding documents shall be ready for distribution prior to the publication of
announcement of the invitation.
(2)
The bidding period shall start on the date of the first publication of the
announcement and shall finish on the date of the bid submission deadline.
(3)
Twenty-one (21) working days for open tendering, where the tendering is
national;
(b)
Thirty (30) working days for open tendering, where the tendering is
international;
(c)
Fourteen (14) working days for restricted tendering, where the tendering is
national;
(d)
Twenty one (21) working days for restricted tendering, where the tendering
is international.
(4)
(5)
the time required for preparation of bids, taking into account the level of
detail required and the complexity of bids;
(b)
(c)
(d)
(e)
any restrictions relating to the time the goods, works or services are required.
Rule 54:
(1)
(b)
(2)
(3)
Where the bidding documents are issued to short-listed or pre-qualified bidders, the
bidding documents shall be issued to all bidders at the same time.
The entity shall make all arrangements to deliver hard copies to each bidder who will
respond to the invitation for bids.
(4)
(5)
When delivering bidding documents, the procuring entity must keep complete record
of the name of the bidder, its contact details and the date and time when the bidding
documents were given.
(a)
in case of hard copy or soft copy, either through flash drive or CD, received
at the Procurement Office as provided for in the Invitation for Bid, the
authorized representative of the Bidder shall sign the Bidding Documents
delivery registry for records;
(b)
in case of download from the procuring entity Website, the Bidder shall enter
its data in order for the Procuring entity to identify the Bidder and keep
record;
(c)
in case of delivery through email, the bidder should provide its name and
contact details in its requisition email;
(6)
The Procurement Office shall maintain a record of all bidders to whom the bidding
documents are issued, and record all information and data given by the Bidders.
(7)
The Procuring entity shall not disclose the name of Bidders who asked for the
bidding documents. The list of potential Bidders shall remain strictly confidential up
to the opening of the Bids.
(8)
(9)
All amendments shall be provided to Bidders free of charge to all Bidders to whom
the Bidding documents have been issued.
(10)
The Procuring entity shall not make any profit on the sale of bidding documents.
(11)
In the circumstances of large bidding documents, when the cost of printing and
distribution cannot be covered by the Procurement Office budget, the Procuring
entity may sell hard copies only of the Bidding Documents, provided that the price is
calculated only to recover the cost of printing, copying and distributing.
(12)
(13)
(a)
The procuring entity shall allow all potential Bidders to inspect the documents
before buying them. A hard copy must be available for inspection at the
Procurement Office;
(b)
The Procurement Office shall issue a signed and stamped receipt for the
Bidding Documents.
Where hard copies of the Bidding Documents are to be sold, the Procuring entity
shall announce it together with the price in the Invitation for Bid.
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(14)
Where hard copies of the Bidding Documents are to be sold, the Procuring entity
shall encourage potential Bidders to download directly the Bidding Documents from
the Website or get it in a soft copy, either through flash drive, CD, or email.
Rule 55:
Bid Securities
(1)
An Entity may require bid securities, in order to deter irresponsible bids and
encourage bidders to fulfil the conditions of their bids. The bidding documents shall
state any requirement for a bid security.
(2)
The value of any required bid security shall always be expressed as a fixed amount
and not as a percentage. The amount shall be between two (2) and five (5) percent
of the estimated value of the contract.
(3)
In determining the amount of bid security required, the Procurement Office shall
take into account the cost to bidders of obtaining a bid security, the estimated value
of the contract and the risk of bidders failing to fulfil the conditions of their bids. The
amount shall be high enough to deter irresponsible bids, but not so high as to
discourage competition.
(4)
The bidding documents shall state that bid securities must be:
(a)
(b)
cash;
(ii)
a bank guarantee;
(iii)
(iv)
(v)
(c)
(d)
valid for the period prescribed in the bidding document, which shall normally
be twenty-eight (28) days beyond the expiry of the bid validity period.
(5)
(6)
The conditions for forfeiture of a bid security, in accordance with article 42(2) of the
Law, shall be specified in the bidding documents.
(7)
The Procurement Office shall release bid securities promptly to unsuccessful bidders
upon expiry of the term of the security or formation of a contract with successful
bidder and submission of any required performance security, whichever is earlier.
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(8)
The bid security of the successful bidder shall not be released, until any required
performance security has been received.
(9)
The Procurement Office shall manage bid securities in accordance with rule 160.
Rule 56:
(1)
The bidding document shall state that a Bidder may seek clarification of the bidding
documents and shall state the final date after which such clarification may not be
sought. Such date shall allow adequate time for potential bidders, including foreign
bidders, to receive and study the bidding documents. The final date after which
clarification may not be sought shall be fourteen (14) working days prior to the
deadline for submission of bids-
(2)
Where a request for clarification is received, the Procurement Office shall promptly
provide a clarification in writing. The clarification shall be copied to all bidders and
shall include a description of the inquiry, but without identifying the source of the
request.
(3)
At any time prior to the deadline for submission of bids, the Entity may, either at its
own initiative or in response to a request for clarification from a Bidder, amend the
bidding documents by issuing an addendum.
(4)
Any addendum shall be issued in writing and the same information shall be provided
to all Bidders at the same time. All addenda shall be numbered sequentially.
(5)
All clarifications and addenda to the bidding document shall be binding on bidders.
Rule 57:
Extension of Bidding Period
(1)
To give Bidders reasonable time in which to take a clarification of or addendum to
the bidding documents into account in preparing their bids, the Entity, may, at its
discretion, extend the deadline for the submission of bids, through the issue of an
addendum in accordance with rule 56.
Rule 58:
Pre-bid Conferences and Site Visits
(1)
The Entity may organise:
(a)
a pre-bid conference in order to brief potential bidders or to offer the
opportunity for them to seek clarifications; and/or
(b)
a site visit, to enable bidders to gain access to the site for delivery of any
proposed works or services.
(2)
Details of pre-bid conferences and site visits, including the date, time and location,
shall be included in the bidding documents and, where possible, in the invitation to
bid notice.
(3)
The date of any pre-bid conference or site visit shall be sufficiently early in the
bidding period, to enable bidders to take the information into account in preparing
their bids, but shall not be so early as to make attendance difficult for any potential
bidders.
(4)
The Procurement Office shall prepare minutes of any pre-bid conference and shall
promptly send them to all bidders to whom the bidding documents have been issued.
The minutes shall include:
(a)
(b)
(c)
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(5)
Following any pre-bid conference or site visit, the Procurement Office shall, where
required, issue clarifications or amend the bidding documents, in accordance with
Rule 56.
Rule 59:
Submission of bids
(1)
The bidder shall submit the bid signed, and accompanied by a power of attorney, if
so required, in the required number of copies and in a sealed envelope, as
prescribed in the bidding documents. Bidders shall submit their technical and
financial proposals enclosed in a single envelop, in the manner prescribed in the
bidding documents.
Rule 60:
Withdrawal, Substitution or Modification of Bids
(1)
The bidding documents shall state that bidders may withdraw, substitute or modify
their bids at any time prior to the deadline for submission of bids, without forfeiting
any bid security. The bidding documents shall state the procedures to be followed
for withdrawal, substitution or modification.
SECTION B Receipt and Opening of Bids
Rule 61:
Receipt of Bids
(1)
The Procurement Office shall make arrangements for the receipt and safe-keeping of
bids until the deadline for submission of bids, which may include:
(a)
the use of a bid box, in which bidders are responsible for depositing their bids
directly and which shall remain locked until the time for bid opening; or
(b)
(2)
Where any bid is too large for the bid box, or samples are required to be submitted
separately, the Procurement Office shall receive and keep the bid, or samples, in
accordance with sub-Rule 61(1)(b).
(3)
Where the Procurement Office is receiving bids and issuing receipts, it shall maintain
a record of all bids received, indicating the name of each bidder, the date and time
of receipt and the name of the person responsible for receipt.
(4)
Bids shall only be received electronically, or by any means which do not permit
sealed bids, where authorised by the PPU through circulars.
(5)
The Entity shall not be held liable for the loss or delay in delivery of any bid delivered
by mail or courier.
(6)
The Procurement Office shall ensure that appropriate staff are available at the
location for submission of bids or that bidders have access to the bid box, for a
reasonable period of time prior to the deadline.
(7)
The Entity shall not disclose the number or identity of bids received, prior to the bid
opening, other than to public officials who require the information as part of their
official duties.
Rule 62:
(1)
Bid Closing
Bidding shall be closed at the precise date and time of the deadline for submission of
bids stated in the bidding documents. Where a bid box is used for the receipt of bids,
the Procurement Office shall seal the bid box at the date and time of the deadline
and ensure that no further bids are placed in the bid box.
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(2)
The Procurement Office shall assign suitable, experienced staff to manage the bid
closing.
(3)
Any bid that is received after the date and time of the deadline for submission of
bids shall not be accepted, but shall be declared late.
(4)
Late bids shall be labelled as late, stating the date and time of receipt and shall be
returned unopened to the bidder. Any late bid which is not labelled with the bidders
name shall be left unopened and destroyed.
(5)
Immediately after the bid closing, the bid box or bids received shall be taken to the
location for bid opening.
Rule 63:
Public Opening of Bids
(1)
The Procurement Committee shall open in public all bids received on time at the
date, time and location indicated in the bidding documents. The time for bid opening
shall be the same as, or immediately after, the time of the deadline for submission of
bids.
(2)
(3)
Bidders, or their representatives, shall be permitted to attend the opening and details
of the bid opening shall be included in the bidding documents.
(4)
At the opening, the chairman of the Procurement Committee shall first open
envelopes marked WITHDRAWAL, and the name of the bidder shall be read out. Bids
for which an acceptable notice of withdrawal has been submitted shall not be
opened. Subsequently, all envelopes marked MODIFICATION shall be opened and the
submissions therein read out in appropriate detail. The chairman shall then open
each bid and read out the name and address of the bidder, the bid price, discounts if
any, the price of any alternative bids.
(5)
Any important infirmity noticed such as the absence of a bid security or discrepancy
between figures and words, absence of signature, unsigned corrections, or any other
material deviation from the bidding documents shall be announced and recorded in
the minutes which shall be signed by those present.
(6)
The read out matter shall be circled and initialled by the chairman of the committee.
(7)
The committee shall record any samples, models, and catalogues submitted by
bidders and shall refer them to the Entity for their safe custody.
(8)
With the exception of late bids, no bids shall be accepted, rejected or evaluated in
any way at the bid opening. Any discrepancies or missing documents shall be noted
in the record of bid opening.
(9)
The Procurement Office shall make a record of the bid opening, which shall be kept
as part of the procurement record. The record shall include at least:
(10)
(a)
(b)
(c)
the total price of the bid, including the currency and amount and any
discounts offered, except where the opening is of technical bids only;
(d)
the names of all staff and bidders representatives attending the opening.
All bidders representatives attending the bid opening shall be requested to sign the
record, but the absence of any signature shall not invalidate the record.
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(11)
The opened bids shall immediately be taken to a secure location, where they shall be
kept until the evaluation begins.
(12)
The tendering proceedings shall not be cancelled on the sole ground that a particular
minimum number of bids have not been submitted.
(1)
Following opening of the bids, and until notice has been given to the successful
bidder of the selection of its bid for award, no bidder shall make any unsolicited
communication to the Entity or try in any way to influence the Entitys examination
and evaluation of the bids.
(2)
Rule 65:
Evaluation of Bids Committees
(1)
The Entity shall appoint an Evaluation of Bids Committee for each procurement
requirement whose estimated value exceeds the threshold prescribed in guidelines
issued by PPU in this regard. The Evaluation of Bids Committee shall be responsible
for the evaluation of bids and the preparation of an evaluation report with
recommendations for submission to the respective award authority.
(2)
The number and level of members of the Evaluation of Bids Committee shall depend
on the value and complexity of the procurement requirement, but shall in all cases
be a minimum of three members.
(3)
The Evaluation of Bids Committee shall include skills, knowledge and experience
relevant to the procurement requirement, which may include:
(4)
(a)
(b)
(c)
(d)
(e)
legal expertise.
Rule 66:
(1)
(2)
(b)
Where appropriate, the Entity may include evaluation criteria additional to price in
the bidding documents, which shall be taken into account in determining the
evaluated price of each bid. Such evaluation criteria shall be related to the
performance, characteristics or terms and conditions of a bid, such as delivery or
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completion schedule, payment schedule, the cost of spare parts or after sales
service, operating or maintenance costs or the productivity of equipment.
(3)
Rule 67:
Correction of Non-Conformities, Errors and Omissions
(1)
Where a bid is substantially responsive, the Entity may waive, clarify or correct any
non-conformity, error or omission, which does not constitute a material deviation.
(2)
(3)
The Entity may correct purely arithmetical errors in bids in accordance with the
procedure stated in the bidding document.
(4)
(5)
Any bid of a Bidder who does not accept the correction of an arithmetical error shall
be rejected and its bid security may be forfeited.
Rule 68:
Clarification of Bids
(1)
The Entity may seek clarification from a bidder of its bid.
(2)
(3)
The request for clarification shall not seek and the bidder shall not be permitted to:
(a)
amend its bid price, except to accept the correction of arithmetic errors;
(b)
(c)
(4)
Any clarification received, which is not in response to a request from the Entity, shall
not be taken into account.
(5)
The failure of a bidder to reply to a request for clarification may result in the
rejection of its bid.
Rule 69:
Preliminary Examination
(1)
The Evaluation of Bids Committee shall conduct a preliminary examination to
determine whether bids are complete and are responsive to the basic instructions
and requirements of the bidding document. The preliminary examination shall
determine whether(a)
(b)
any required bid security has been submitted, in the correct form and amount
and valid for at least the period required;
(c)
the bid has been submitted without material reservations or deviations from
the terms and conditions of the bidding document;
(d)
(e)
(f)
(g)
(h)
(i)
the bid meets any other key requirements of the bidding document.
(2)
(3)
The preliminary examination shall also determine whether Bidders are eligible, where
this has not been determined prior to inviting bids.
Rule 70:
Assessing Responsiveness of Bids
(1)
The Entitys determination of a bids responsiveness shall be based on the contents
of the bid itself, subject to any clarifications received pursuant to Rule 68.
(2)
(3)
(b)
would limit in any substantial way, inconsistent with the bidding documents,
the Entitys rights or the bidders obligations under any resulting Contract; or
(c)
(4)
Any bid which contains a material deviation, reservation or omission, and is therefore
not substantially responsive, shall be rejected and may not subsequently be made
responsive by the bidder or the Entity.
(5)
(6)
(7)
(a)
(b)
(c)
Rule 71:
Technical Evaluation
(1)
The Evaluation of Bids Committee shall conduct a technical evaluation by comparing
each bid to the technical requirements of the description of goods, works or services
in the bidding documents, to determine whether the bids are substantially
responsive.
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(2)
The technical evaluation shall determine whether bids are, or are not, substantially
responsive to the technical standard defined in the bidding documents and shall not
be used to assess the relative quality of bids or to award points in any way.
(3)
The factors taken into account shall be those indicated in the bidding document only
and may include, but not be limited to:
(a)
(b)
(c)
(4)
The evaluation shall not take into account any requirements which were not included
in the Bidding Document.
(5)
Any material deviations shall result in rejection of the bid and such bids shall not be
subject to financial evaluation and comparison.
(6)
Rule 72:
Adjustment of bid prices for minor deviations from technical aspects
(1)
The cost of minor omissions or missing items in the scope of supply, services, and
the like shall be added to the bid price to allow for bid comparison on an equal basis.
The Entity shall base the price adjustment on a reasonable estimate of the cost or
based on the fair price of the omitted item. In the event of uncertainty, the average
price quoted by the other responsive Bidders may be used. The cost implication of
the minor deviations, if any, shall be taken into account in accordance with Rule
67(2).
(2)
All bid-price adjustments shall be made by the Evaluation of Bids committee, without
any consultations with the Bidder regarding the justification for the amount of the
adjustment.
(3)
(4)
(b)
when only one or a few deviations have a relatively high monetary value, as
would be the case with deviations regarding retention money or liquidated
damages or liabilities,
The Entity may permit alternative bids, where it is anticipated that bidders may be
able to offer goods, works or services which do not conform precisely to the
description of requirements, but which meet the objectives of the procurement in an
alternative manner. Alternative bids may be permitted in areas of rapidly changing
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technology or where a need could be satisfied in a number of different ways and the
Entity wishes to encourage cost efficient and technically innovative approaches by
bidders.
(3)
(4)
Where alternative bids are permitted, the bidding documents shall state that the
alternative bid does not need to conform precisely to the description of
requirements, but must:
(a)
(b)
(c)
clearly state the benefits of the alternative bid over any solution which
conforms precisely to the description of requirements, in terms of technical
performance, price, operating costs or any other benefit.
Alternative bids shall be evaluated in the same way as other bids, except that the
technical evaluation shall take into account only the objectives or performance
requirements prescribed in the description of requirements.
Rule 74:
Financial Evaluation and Comparison
(1)
The Evaluation of Bids Committee shall conduct a financial evaluation and
comparison to determine the evaluated price of each bid and determine the lowest
evaluated bid, which is substantially responsive to the requirements of the bidding
documents (rather than simply identifying the bid with the lowest bid price).
(2)
(3)
(b)
(c)
(d)
(e)
(f)
Evaluation of commercial
terms, including payment terms, delivery /
completion period, cost of required spare parts.
(g)
converting all bids to a single currency, using the currency and the source
and date of exchange rate indicated in the bidding document; and
(h)
The addition or subtraction of all the above costs determined in accordance with the
pre-disclosed criteria will then be applied to the quoted price to arrive at the
evaluated cost of the bids, which are then compared to identify the bid with the
lowest evaluated cost, subject also to the application of a margin of preference for
domestic goods and bidders, if one is applicable.
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(4)
Bids shall be compared by ranking them according to their evaluated cost and
determining the bid with the lowest evaluated price.
(5)
Where the bidding document included more than one lot and permitted bidders to
offer discounts, which were conditional on the award of one or more lots, the
Evaluation of Bids Committee shall conduct a further financial evaluation, to
determine the lowest evaluated combination of bids.
Rule 75:
Application of Discounts
(1)
Bidders shall be permitted to offer discounts to their bids, which shall be included in
the bid and read out at the bid opening.
(2)
Any discount offered after the deadline for submission of bids shall not be taken into
account.
(3)
Any non conditional discounts shall be taken into account in the financial evaluation
and comparison of bids, in accordance with rule (74) (2) (c);
(4)
Bidders may also be permitted to offer discounts, which are conditional on the award
of one or more lots. Conditional discounts shall be taken into account in a further
financial evaluation, in accordance with Rule 74(5).
(5)
Any prompt payment discount included in a bid shall become a term of the contract,
if that bid is accepted, and shall be utilised by the Entity, if payment is made in
accordance with the terms of the discount. However, prompt payment discounts
shall not be considered in the evaluation and comparison of bids, unless such
discount is taken into account through the application of any additional evaluation
criteria, in accordance with Rule 66(2).
Rule 76:
Preference
(1)
Where so indicated in the bidding document, and in accordance with any rules or
schemes for domestic preference issued by the PPU through circulars, the Evaluation
of Bids Committee may apply a margin of preference to eligible bids.
(2)
(3)
Any rules or schemes issued by the PPU through circulars, and the bidding
documents, shall clearly state:
(a)
(b)
(c)
the percentage of the margin of preference and the manner in which it will be
applied during the evaluation.
The percentage of preference in schemes issued by the PPU shall be between five
(5) and ten (10) percent. The PPU may review these percentages annually.
Rule 77:
Detailed evaluation of bids for civil works
(1)
The detailed evaluation of bids for civil works shall be conducted in general along the
lines mentioned above, with particular attention being paid to the aspects specific to
the civil works context, including:
(a)
Consistency of work plans and schedules with the requirements in the bidding
documents, including with respect to aspects such as timing of mobilization
and construction methodology;
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(b)
(c)
(2)
The Entity shall assess whether prices are not so low that the Bidder, if awarded the
contract, would incur substantial financial losses and, therefore, fail to complete the
work satisfactorily, or whether any unrealistically low prices reflect a
misunderstanding of the specifications and scope of works. In such a case the
bidder's explanation including rate analysis shall be sought and if not rational and
satisfactory, the bid may be rejected. In the case of satisfactory explanation, an
additional performance security may be required to protect the Entity against
financial loss in the event of a default by the successful bidder.
(3)
The Entity shall identify unbalanced bids by comparing unit prices quoted by bidders
with the Entitys estimates which are updated and corresponding prices quoted by
other bidders.
(4)
When the Entity determines that a bidder may have quoted relatively high unit prices
for those work elements to be performed early in the contract period so as to
increase the up-front payments, the bid shall not be rejected unless it is extremely
unbalanced; instead, a higher performance security may be required to protect the
Entity against financial loss in the event of a default by the successful bidder. The
evaluation and comparison of bids shall involve calculating the nominal loss that
would be incurred by the Entity by having to make larger than normal early
payments.
Rule 78:
Post-qualification
(1)
Where so indicated in the bidding documents, the Entity may conduct a postqualification of the bidder who submitted the lowest evaluated responsive bid, to
determine whether the bidder is qualified to perform the contract effectively.
(2)
The criteria for qualification shall be as set out in the bidding document and shall be
drafted in accordance with Rule 37.
(3)
Where a bidder is determined not to be qualified, the bid shall be rejected and a
post-qualification conducted on the bidder who submitted the next lowest evaluated
responsive bid.
(4)
Where a pre-qualification has been conducted, the Entity may verify the information
submitted by the bidder who submitted the lowest evaluated responsive bid. Where
the bidder no longer meets the qualification criteria, the bidder shall be rejected and
the qualifications of the next bidder verified.
Rule 79:
Bid Evaluation Reports and Recommendations
(1)
The Evaluation of Bids Committee shall prepare a bid evaluation report. The bid
evaluation report shall be submitted to the Award Authority.
(2)
(b)
(c)
(d)
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(3)
(e)
details of any non material deviations, which were accepted and the way in
which they were quantified and taken into account in the financial evaluation;
(f)
(g)
(h)
a statement of the lowest evaluated substantially responsive bid, for each lot
where applicable;
(i)
(j)
(k)
The notice shall be drafted using the standard form issued by the PPU and shall
contain at least(a)
(b)
(c)
(d)
(e)
(3)
(4)
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(5)
Rule 82:
Evaluation of Expressions of Interest and Development of Shortlists
(1)
Expressions of interest shall be evaluated using the criteria stated in the notice in
order to develop a shortlist of consultants who are expected to be able to meet the
Entitys requirements. A record of the evaluation of expressions of interest shall be
maintained. Where the number of suitable consultants is greater than the number of
consultants to be included on the shortlist, the consultants who best meet the
Entitys requirements shall be included on the shortlist.
(2)
(3)
Consultants shall not be included unless they are expected to fully satisfy the Entitys
requirements, including those related to eligibility, qualifications, capacity, resources
and experience.
(4)
The Consultants included on the shortlist shall not all have the same ownership.
(5)
The results of the evaluation of the expressions of interest and/or the proposed
shortlist shall be approved by the Award Authority, prior to issue of the Request for
Proposals.
The Request for Proposals shall include all information necessary to enable
consultants to participate in the procurement proceedings and to submit proposals
that are responsive to the needs of the Entity. In particular, the Request for
Proposals shall include:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
Rule 84:
Choice of Selection Procedure
(1)
The Entity shall select the most appropriate selection procedure to be used to
evaluate proposals and shall state the selection procedure in the Request for
Proposals.
(2)
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(a)
Quality and Cost Based Selection (QCBS), which takes into account both the
quality and the cost of proposals and selects the proposal which offers the
optimum balance of quality and cost;
(b)
Quality Based Selection (QBS), which focuses on quality and selects the
highest quality proposal;
(c)
Fixed Budget Selection (FBS), which selects the highest quality proposal,
which is within the entitys pre-disclosed budget; or
(d)
Least Cost Selection (LCS), which selects the lowest priced proposal, which
meets the entitys technical requirements.
(3)
Subject to sub-rules 84(4), 84(5) and 84(6), Quality and Cost Based Selection shall
normally be used as the selection procedure for consultancy services.
(4)
(b)
assignments which will have a high downstream impact and the Entity wishes
to contract the best consultant; or
(c)
assignments that can be carried out in substantially different ways and where
the value of the services depends on their quality. By conducting, possibly
with the assistance of an individual consultant, a more detailed analysis prior
to inviting proposals on a quality basis, the Entity may be able to better
define the budget, work method or specific outcome expected from the
assignment to be completed.
(5)
Fixed Budget Selection may be used for assignments, which are simple, can be
precisely defined and where the budget is fixed.
(6)
Least Cost Selection may be used for assignments of a standard or routine nature,
where well-established practices and standards exist.
Rule 85:
Submission of Proposals for Consultancy Services
(1)
The Request for Proposals shall require consultants to submit separately sealed
technical and financial proposals, both sealed in an outer envelope.
(2)
(3)
The time period provided for submission of proposals shall be from twenty-one (21)
to ninety (90) working days after the date of issue of the request for proposals
where international consultants are included in the shortlist, or from fourteen (14) to
ninety (90) working days where all consultants are national. In determining the
appropriate time period for submission of proposals for each request, the
Procurement Office shall take into account, in addition to the required minimum
period, the principles provided in Rule 53(5).
Rule 86:
Evaluation Criteria for Consultancy Services
(1)
The Request for Proposals shall state the evaluation criteria to be applied during the
technical evaluation.
(2)
The evaluation criteria shall be designed to assess the ability of Consultants to:
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(a)
assessment
of
their
experience,
(b)
(3)
Each criterion shall be allocated a maximum number of points and the total for all
criteria shall equal 100. The number of points allocated to each criterion shall be
directly related to its importance to the procurement, except that the points allocated
to experience may be limited, where experience has already been taken into account
in the development of the shortlist.
(4)
The Request for Proposals may also include sub-criteria to provide further guidance
on the allocation of points under each main criterion.
(5)
Rule 87:
Issue of Request for Proposals
(1)
The Request for Proposals document shall be approved by the Award Authority, prior
to its issue.
(2)
The Request for Proposals shall be issued to all shortlisted consultants at the same
time and a record of the issue of the documents shall be maintained.
Rule 88:
Clarification and Amendment of Request for Proposals
(1)
The Request for Proposals shall state that a Consultant may seek clarification of the
Request for Proposals: such clarification may be sought at least fourteen (14)
working days prior to the deadline for the submission of proposals.
(2)
Where a request for clarification is received, the Procurement Office shall provide a
clarification in writing within seven (7) working days after receipt of the request. The
clarification shall be copied to all consultants and shall include a description of the
inquiry, but without identifying the source of the request.
(3)
At any time prior to the deadline for submission of proposals, the Entity may, either
at its own initiative or in response to a request for clarification from a Consultant,
amend the Request for Proposals by issuing an addendum.
(4)
Any addendum shall be issued in writing and the same information shall be provided
to all Consultants at the same time. All addenda shall be numbered sequentially.
(5)
All clarifications and addenda to the Request for Proposals shall be binding on
consultants.
Rule 89:
Extension of Proposal Submission Period
(1)
To give Consultants reasonable time in which to take a clarification or addendum into
account in preparing their proposals, the Entity, may, at its discretion, extend the
deadline for the submission of proposals, through the issue of an addendum in
accordance with Rule 88.
SECTION C Receipt and Opening of Proposals
Rule 90:
Receipt of Proposals
(1)
The Procurement Office shall make arrangements for the receipt and safe-keeping of
proposals until the deadline for submission of proposals, which may include:
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(a)
the use of a proposal box, in which consultants are responsible for depositing
their proposals directly and which shall remain locked until the time for
proposal opening; or
(b)
(2)
(3)
Where the Procurement Office is receiving proposals and issuing receipts, it shall
maintain a record of all proposals received, indicating the name of each consultant,
the date and time of receipt and the name of the person responsible for receipt.
(4)
Proposals may only be received electronically, or by any means which do not permit
sealed proposals, where authorised by the PPU through circulars.
(5)
The Entity shall not be held liable for the loss or delay in delivery of any proposal
delivered by mail or courier.
(6)
The Procurement Office shall ensure that appropriate staff are available at the
location for submission of proposals or that consultants have access to the proposal
box, for a reasonable period of time prior to the deadline.
(7)
The Entity shall not disclose the number or identity of proposals received, prior to
the proposal opening, other than to public officials who require the information as
part of their official duties.
Rule 91:
Deadline for Submission of Proposals
(1)
The Procurement Office shall ensure that proposal submission is closed at the precise
time and date of the submission deadline and shall ensure that no further proposals
are received or that the proposal box is sealed.
(2)
Any proposal received after the deadline shall not be accepted, but shall be declared
late, labelled as such and returned to the consultant unopened.
(3)
Following the deadline for submission of proposals, the Procurement Office shall
ensure that all proposals are kept securely and taken immediately to the location for
the proposal opening.
Rule 92:
Opening of Technical Proposals
(1)
The Procurement Committee shall open the technical proposals immediately after the
deadline for submission of proposals.
Rule 93:
Record of Opening
(1)
The Procurement Office shall maintain a record of the proposal opening, which shall
form part of the procurement record.
SECTION D Technical Evaluation of Proposals
Rule 94:
Evaluation Committees
(1)
The Award Authority shall establish an Evaluation Committee to conduct the
evaluation of proposals.
(2)
The Evaluation Committee shall have a minimum of three members, with appropriate
skills and experience for the type, value and complexity of the procurement
requirement.
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(3)
Rule 95:
Preliminary Examination
(1)
The Evaluation Committee shall conduct a preliminary examination to determine
whether proposals are complete and responsive to the basic instructions and
requirements of the Request for Proposals. The preliminary examination shall
determine whether:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
the proposal meets any other key requirements of the Request for Proposals.
(2)
Any material deviations shall result in rejection of the proposal and such proposals
shall not be subject to technical evaluation.
(3)
The preliminary examination shall also determine whether Consultants are eligible
and qualified, where this has not been determined prior to inviting proposals.
Rule 96:
Evaluation and selection
(1)
Any award by the Entity shall be made to the consultant whose proposal best meets
the needs of the Entity as determined in accordance with the criteria and
methodology for evaluating the proposals and final selection procedures set forth in
the request for proposals.
(2)
The evaluation of the proposals shall be carried out in two stages: first the quality,
and then the cost. Evaluators of technical proposals shall not have access to the
financial proposals until the technical evaluation, including any other reviews and
approval, is concluded. Financial proposals shall be opened only thereafter.
(3)
(b)
(c)
(d)
(e)
(4)
Each of the criteria shall be assigned a weight, in accordance with the applicable
instructions and manuals. The general criteria shall normally be divided into three
sub-criteria which should be limited to what is essential to conduct the evaluation.
(5)
A record of the evaluation of each proposal and the comparison between them shall
be maintained by the Entity, and shall be reflected in an overall evaluation report.
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Rule 97:
Scoring of Proposals for Technical Evaluation
(1)
Each member of the Evaluation Committee shall independently conduct a technical
evaluation of each proposal, awarding scores against each criterion. These scores
shall be recorded and the score sheets signed by the evaluators.
(2)
Scores from each member of the Evaluation Committee shall be compiled and an
average score calculated for each proposal.
(3)
The Evaluation Committee shall consider any significant deviations from the average
score or inconsistencies in scoring and evaluators may be required to justify the
scores awarded. Where an evaluator has misunderstood a proposal or the criteria or
has evaluated proposals in an inconsistent manner, the evaluator may be permitted
to adjust his scores, but no evaluator shall be obliged to make adjustments to his
scores or to adjust scores without justification. Where any score is adjusted, the
original score sheet shall be kept as part of the record of the evaluation, the adjusted
scores recorded on a new score sheet and the reasons for making adjustments shall
be recorded.
(4)
The average score for each proposal shall be its total technical score for evaluation
purposes.
Rule 98:
Technical evaluation report and retention of evaluation records
(1)
The Evaluation Committee shall prepare a Technical Evaluation Report, which shall
include:
(a)
(b)
the results of the preliminary examination, with reasons why any proposals
were rejected;
(c)
(d)
(e)
(f)
(g)
a list of the proposals which reached the minimum technical qualifying mark
and a recommendation to open the financial proposals of these consultants;
(h)
a recommendation to reject all proposals which did not reach the minimum
technical qualifying mark; and
(i)
(2)
The Technical Evaluation Report shall be submitted to the appropriate authority for
approval, prior to proceeding with the opening and evaluation of financial proposals
or the rejection of any proposals. The Technical Evaluation Report shall be included
in the overall evaluation report referred to in Rule 96(5).
(3)
All records relating to the evaluation, such as individual mark sheets, shall be
retained until completion of the project and its audit, subject to the requirements of
Article 66(4) of the Law and Rule 157.
Rule 99:
Notification of Results of Technical Evaluation
(1)
Following approval of the Technical Evaluation Report by the Award authority, the
Procurement Office shall notify the consultant or consultants, whose proposals are
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proceeding to the financial evaluation, of the date and time set for the opening of
financial proposals. The opening date shall not be sooner than (fourteen) 14
working days after the notification date where international consultants are included,
or (seven) 7 working days where all consultants are national.
(2)
The financial proposal of all consultants whose technical proposal obtained pass
marks shall be publicly opened and evaluated. The successful consultant shall then
be selected using the selected method and then invited for negotiations.
(3)
When using the Quality Based Selection method, the financial proposal of the
Consultant whose technical proposal scored the highest marks alone shall be
opened, evaluated and that Consultant invited for negotiation.
(4)
(5)
At the same time, the Entity shall notify those Consultants whose proposals were
unsuccessful, indicating that their technical proposals are rejected and that their
financial proposals will be returned unopened after completion of the selection
process.
(Key pages of the financial proposals shall be initialled by the chairman of the
Procurement Committee and the following information read out and recorded:
(a)
(b)
(c)
(3)
(4)
The Procurement Office shall maintain a record of the financial proposal opening,
which shall form part of the procurement record.
(5)
The minutes of the session shall be signed by all those present, if feasible, but at a
minimum by all members of the Procurement Committee, and made available upon
request to any Consultant that submitted a proposal. The absence of any
Consultants signature shall not invalidate the record.
Rule 101:
Financial Evaluation for Quality and Cost Based Selection Methods
(1)
The Evaluation Committee shall determine the evaluated price of each proposal by:
(a)
(b)
determining whether financial proposals are complete and have cost all
corresponding inputs in the technical proposal, costing any missing items and
adding them to the proposal price; and
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(c)
(2)
The lowest priced proposal shall be given a financial score of one hundred 100 and
other proposals shall be given a financial score which is inversely proportional to the
lowest evaluated price, using the methodology stated in the Request for Proposals.
(3)
The technical and financial scores of each proposal shall be weighted, using the
weights stated in the Request for Proposals.
(4)
The weighted technical and financial scores shall be added together, to give a total
score for each proposal.
(5)
The proposal with the highest total score, in accordance with the criteria and their
weight as disclosed in the request for proposals, shall be recommended for award of
contract, subject to any negotiations required.
(6)
Alternatively, if so disclosed in the request for proposals, the successful proposal may
be determined using the fixed budget selection method (i.e., selection of the
consultant with the highest technical score whose financial proposal is within the
disclosed budget ceiling), or the least cost method (i.e., selection of the consultant
whose financial proposals is the lowest among those consultants whose technical
proposals attained the required minimum technical score).
Rule 102:
Financial Evaluation for Quality Based Selection
(1)
The Evaluation Committee shall correct any arithmetic errors and determine whether
the financial proposal is complete and has cost all corresponding inputs in the
technical proposal. The Evaluation Committee shall also analyse the financial
proposal to determine whether it offers value for money and to prepare for
negotiations.
(2)
Rule 103:
Financial evaluation report
(1)
The Evaluation Committee shall prepare a Financial Evaluation Report, which shall
include:
(a)
(b)
(c)
the financial score of each proposal and the methodology used for allocating
financial scores (in the case of quality-and-cost-based selection methods); or
the ranking of each proposal by price (in the case of least-cost selection);
(d)
the weighting of the technical and financial scores (in the case of quality-andcost-based selection methods);
(e)
the total score for each proposal (in the case of quality-and-cost-based
selection methods);
(f)
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(g)
(2)
the currency and price of the proposed contract, subject to any changes
following negotiations.
The Financial Evaluation Report shall be submitted to the Award Authority for
approval, prior to proceeding with any negotiations required or award of contract.
Rule 104:
Scope of Negotiations
(1)
Negotiations with the selected consultant may relate to:
(2)
(a)
(b)
(c)
(d)
(e)
(b)
(c)
reduce fee rates or reimbursable costs, except where changes are required to
reflect any agreed changes to the technical proposal; or
(d)
(3)
(4)
The selected Consultant should not be allowed to substitute key staff, unless both
parties agree that undue delay in the selection process makes such substitution
unavoidable or that such changes are critical to meet the objectives of the
assignment. If this is not the case and if it is established that key staff were offered
in the proposal without confirming their availability, the Consultant may be
disqualified and the process continued with the next ranked Consultant. The key staff
proposed for substitution shall have qualifications equal to or better than the key
staff initially proposed.
(5)
If the negotiations fail to result in an acceptable contract, the Entity shall proceed to
the next ranked consultant and so on.
Rule 105:
Procedure for Negotiations
(1)
Negotiations shall not be conducted until after the Financial Evaluation Report has
been approved by the relevant authority.
(2)
Negotiations shall only be held with the Consultant recommended for contract award,
except where negotiations fail, and the Procurement Office obtains the approval of
the Award Authority to open negotiations with the next ranked Consultant.
(3)
The Procurement Office shall prepare a plan for the negotiations, which shall specify
the issues to be negotiated and objectives to be achieved and shall, to the extent
possible, quantify the objectives and set maximum and minimum negotiation
parameters.
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(4)
The negotiations shall be conducted by a minimum of two staff of the Entity, who
shall not commit the Entity to any proposed arrangements or agreements, but shall
seek the approval of the Award authority, prior to confirming any agreement
reached.
(5)
Staff conducting the negotiations shall prepare minutes of the negotiations, which
shall form part of the record of the procurement and shall obtain the Consultants
written agreement that they are a true and accurate record of the negotiations held.
Rule 106:
Procedure for award
(1)
Subject to successful negotiation, the contract shall be awarded to the successful
consultant. If the negotiation is not successful in arriving at a contract satisfactory to
both parties, the negotiation shall be terminated and the next highest ranked
Consultant invited for negotiation.
(2)
The Entity shall prefer to publish a notice seeking expressions of interest to develop
a shortlist, in accordance with applicable provisions of Rule 81. However, in
circumstances such as assignments of small duration and value for which the time
and process of considering a large number of applications may be disproportionate
to the nature of the assignment, the Entity may waive the requirement of publication
of notice.
(3)
The consultants may not be required to submit proposals and individual consultants
shall be selected on the basis of their qualifications for the assignment.
(4)
(5)
(6)
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(a)
tasks that are a continuation of previous work that the consultant has carried
out and for which the consultant was selected competitively;
(b)
(c)
(d)
when the individual is the only consultant qualified for the assignment.
The Request for Quotations Document shall include all information necessary to
enable venodors to participate in the procurement proceedings and to submit
quotations that are responsive to the needs of the Entity. In particular, the Request
for Quotations shall include:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Rule 111:
Invitation of Quotations and Development of Shortlist
(1)
Written quotations shall be requested from a shortlist of vendors.
(2)
The shortlist shall include sufficient vendors to ensure effective competition, at least
three bidders should be invited to participate.
(3)
(4)
(b)
(c)
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(d)
(5)
(6)
In developing a shortlist, the Procurement Office shall comply with the following
rules:
(a)
a fair and equal opportunity shall be afforded to all vendors and there shall
be a rotation of different vendors on successive shortlists;
(b)
the shortlist shall not include any vendors who are not expected to fully
satisfy any eligibility and qualification requirements;
(c)
the shortlist shall not include vendors with the same ownership.
The Procurement Office shall record the names of the vendors included on the
shortlist and the reasons for their inclusion. The shortlist shall be kept as part of the
procurement record.
Rule 112:
Submission and Receipt of Quotations
(1)
The Entity shall require vendors to submit written quotations by:
(a)
(b)
facsimile;
(c)
electronic mail; or
(d)
(2)
The Request for Quotations document shall specify the location, date and time for
submission of quotations and any quotation received after the deadline for
submission shall be rejected.
(3)
All quotations shall be kept securely until after the deadline for submission of
quotations. Where quotations are received in an unsealed form, prior to the
submission deadline, the contents of the quotation shall be kept confidential and
shall not be revealed to any person, other than the officer responsible for receiving
the quotation.
Rule 113:
Evaluation of Quotations
(1)
The Entity shall appoint an Evaluation Committee or designate the person or persons
responsible for the evaluation in accordance with Rule 65.
(2)
(3)
(4)
The evaluation of quotations shall be conducted in accordance with the rules and
procedures in Chapter IV, Section C, except that:
(a)
(b)
the determination of the evaluated price of quotations shall not include the
application of any additional evaluation criteria as prescribed in Rule 66(2)
and 74(2)(e).
The quotation with the lowest evaluated cost, which is substantially responsive to the
requirements of the Entity, shall be recommended for award of contract.
The successful vendors acceptance of the purchase order shall constitute the
procurement contract.
CHAPTER VII PROCEDURES FOR SINGLE-SOURCE PROCUREMENT
Rule 114:
(1)
Procuring entities shall ensure that they have complied with all relevant requirements
of Chapter II, prior to initiating Single Source Procurement procedures for
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procurement of Goods, Works and Services both Consultants Services and NonConsultancy Services in accordance with this chapter.
SECTION A Single-Source Procurement for Low Value Requirements
Rule 115:
Procedure for Low Value Procurement
(1)
Where the Entity conducts single-source procurement on the grounds of low value,
in accordance with rule 29(1)(a), the procedure shall be as follows:
(a)
the Procurement Office shall first confirm that the goods, works or services
required are not available from stores or under any existing framework
contract or similar arrangement;
(b)
(c)
the Procurement Office shall request a quotation, which may be either written
or oral, from the identified vendor, based on the description included in the
procurement requisition;
(d)
(2)
if the Procurement Office is satisfied that the quotation meets its needs and
offers value for money, it shall award a contract and issue a written purchase
order or similar document, provided that funds have been committed for the
procurement.
The Entity shall, as far as possible, aggregate the Low value requirements to have
more competitive procurement, instead of having the option to single source each of
them.
(b)
issue the written request to the sole potential vendor and obtain a written
quotation;
(c)
(d)
(e)
prepare a report for submission to the Award Authority, which shall contain(i)
(ii)
(iii)
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(a)
Be first satisfied that the emergency needs is not created by any action or
failure of the Entity itself;
(b)
(c)
(d)
issue a written or verbal request to the sole vendor and obtain a written
quotation;
(e)
(f)
(g)
prepare a brief report for submission to the Award Authority, which shall
contain:
(i)
(ii)
(iii)
Rule 118:
Approval Arrangements for Emergency Procurement
(1)
The Procurement Committee shall notify the Award Authority, as soon as it identifies
a procurement requirement which will be subject to single-source procurement on
the grounds of an emergency need.
(a)
(b)
(b)
accepts the contractual terms and conditions proposed by the Entity or offers
other terms and conditions which are acceptable to the Entity; and
(c)
offers value for money, based on costs previously spent for similar goods,
works or services or a breakdown analysis of the costs of each component,
taking into account the circumstances and value of the procurement, and, if
applicable as in the case of emergency procurement, any additional costs
involved in meeting the Entitys delivery or completion schedule.
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(2)
Based on the evaluation, the Award Authority shall determine whether negotiations
are required with the vendor.
Rule 120:
Procedure for Negotiations
(1)
The Procurement Committee shall prepare a plan for the negotiations, which shall
specify the issues to be negotiated and objectives to be achieved and shall, to the
extent possible, quantify the objectives and set maximum and minimum negotiation
parameters.
(2)
The negotiations shall be conducted by a minimum of two staff of the Entity, who
shall not commit the Entity to any proposed arrangements or agreements, but shall
seek the approval of the relevant Award Authority, prior to confirming any
agreement reached.
(3)
Staff conducting the negotiations shall prepare minutes of the negotiations, which
shall form part of the record of the procurement.
CHAPTER VIII CONTRACT AWARD
The appropriate Award Authority shall be determined by the actual value of the
recommended contract and not the estimated value prepared during the
procurement planning process.
(3)
(4)
Where a contract award decision is above the authority of the Minister, the
recommendation shall first be submitted to the Minister for confirmation of the
contract award recommendation and then the Minister shall submit the confirmed
contract award recommendation to the Special Procurement Commission.
(5)
A contract award decision by the Award Authority does not constitute a contract, but
only a decision as to the winning or recommended bidder. Contract awards shall be
made in accordance with Rule 124, 126 or 127, as appropriate.
(6)
The Procurement Committee shall also obtain any other required approvals.
Rule 122:
Commitment of Funds
(1)
Following the contract award decision by the Award Authority, the Entity shall
commit the required funds, before proceeding to award the contract.
(2)
Where the contract is a multiyear contract, the Entity shall obtain approval from the
Ministry of Finance, prior to awarding the contract.
(3)
Where required, the Entity shall also commit the funds for other costs linked to the
contract, as described in Rule 14(1).
Rule 123:
(1)
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(2)
Notwithstanding the provisions of sub-Rule 123(1), where the Entity uses restricted
tendering in accordance with Rule 48(1)(d), the requirement for publication of a
notice of proposed award shall not apply.
(3)
the name and address of the bidder recommended for contract award;
(b)
(c)
that bidders have the right to submit an application for review of the decision
in accordance with Article 71 of the Law.
(4)
The notice shall clearly state that it does not constitute the award of a contract.
(5)
The notice shall be published in accordance with the guidelines issued by PPU in this
regard.
(6)
(7)
The Entity shall not award the contract until two weeks have elapsed after issue of
notice of proposed award to all bidders or consultants.
Rule 124:
(1)
(2)
(b)
(c)
the date and reference number of the bid or proposal being accepted;
(d)
(e)
any items excluded from the contract or variations in quantity or any other
detail;
(f)
(g)
to the extent applicable, the time period and procedure for signature of the
contract and provision of a performance security; and
(h)
(3)
The Procurement Office shall obtain a signed acknowledgement from the bidder, or
consultant, confirming that it has received the notice of bid or proposal acceptance.
(4)
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Rule 125:
(1)
(2)
The Procurement Office shall obtain the Award Authoritys approval of the contract
document, before sending it to the successful bidder of consultant for signature.
(3)
The Procurement Office shall ensure that the successful bidder or consultant signs
and returns a copy of the contract.
(4)
The process has to be completed during the bid Security Validity period, as
applicable.
Rule 126:
(1)
Where procurement is conducted using the request for quotations method, following
the contract award decision adopted by the Award Authority and the commitment of
funds, the Procurement Office shall prepare a written purchase order and send it to
the recommended vendor.
(2)
The purchase order shall not contain any terms, conditions or requirements which
differ from the vendors quotation, unless these have been agreed in writing with the
vendor.
(3)
The successful vendors written acceptance of the purchase order shall constitute a
contract between the Entity and the vendor.
(4)
The Entity shall require the vendor to provide a written confirmation that it has
received the purchase order and is proceeding with performance of the contract.
Rule 127:
Contract Award in Single Source Procurement
(1)
Where the Entity conducts single-source procurement on the grounds of low value,
in accordance with Rule 29(1)(a), it shall award the contract in accordance with Rule
115(1)(d).
(2)
(3)
The Procurement Office shall obtain a signed acknowledgement from the bidder,
confirming that it has received the notice of quotation acceptance, contract or
purchase order and that it is proceeding with performance of the contract, but any
failure by the contractor to provide such confirmation shall not invalidate the
contract.
Rule 128:
Performance Securities
(1)
A Entity may request a performance security, to secure the contractors obligation to
fulfil the contract. The bidding documents and contract shall state any requirement
for a performance security. A performance security may cover warranty obligations,
if so stated in the contract.
(2)
The value of any required performance security may be expressed either as a fixed
amount or as a percentage of the contract value. The amount shall be between five
(5) and ten percent (10) of the contract value.
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(3)
(4)
(5)
The bidding documents and contract shall state that the performance security must
be:
(a)
(b)
cash;
(ii)
a bank guarantee;
(iii)
(iv)
(v)
(c)
(d)
valid for the period prescribed in the contract, which shall normally be twenty
eight (28) days beyond the anticipated completion date of the contract.
(6)
(7)
The conditions for forfeiture of the performance security shall be specified in the
contract.
(8)
The Procurement Office shall release the performance security promptly to the
contractor upon completion of all the contractors contractual obligations which are
subject to the security or termination of the contract for a reason that is not
attributable to any fault of the contractor.
(9)
The Procurement Office shall manage performance securities in accordance with Rule
160.
Rule 129:
Rejection of Bids and Debriefing Unsuccessful Bidders
(1)
Upon the entry into force of the contract and, the provision by the contractor of any
required performance security, the Procurement Office shall promptly reject the bids
of unsuccessful bidders.
(2)
When rejecting unsuccessful bids, the Procurement Office shall return any bid
securities and any unopened financial proposals.
(3)
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(4)
The debriefing shall be provided in writing, within a reasonable period of time of the
receipt of the request.
(5)
The debriefing shall state at which stage of the evaluation the bid was rejected,
provide brief details of any material deviation, reservation or omission leading to
rejection of the bid or state that a bid was substantially responsive, but failed to offer
the lowest evaluated price or highest score, as required.
(6)
The debriefing shall not provide details on any other bids, other than information
that is publicly available from bid openings or published notices.
Rule 130:
Public Notice of Contract Awards
(1)
In accordance with the provisions of Article 63 of the Law, the Entity shall publish a
notice of contract award for all contracts..
(2)
The notice of contract award shall indicate the name and address of the contractor, a
brief description of the goods, works or services procured and the contract price.
(3)
The notice shall be published in accordance with the guidelines issued by PPU in this
regard.
Rule 131:
Registration of Contracts
(1)
Entities shall register details of all contracts with the Ministry of Finance in order to
facilitate disbursement planning.
(2)
(3)
The Ministry of Finance shall maintain a Central Contract Registry, recording the
following details for all contracts(a)
(b)
(c)
name of contractor;
(d)
(e)
The information contained in the Central Contract Registry shall be made available to
the PPU, to facilitate the monitoring of procurement activity.
Entities shall use the contract forms included in the standard bidding documents
(SBDs) issued by the PPU, except where no contract forms have been included in the
SBDs issued by PPU.
Entities should preferably select a contract type that minimizes increase from the
original contract amount and related commitment of funds and maximizes
transparency. Appropriate justification shall be recorded by the procuring Entity while
choosing riskier contract types i.e. percentage based contracts, cost-reimbursable
contracts and framework contracts.
Rule 133:
(1)
An Entity may use a lump sum contract for goods, works or services, where the
content, duration and outputs of the contract are well defined.
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(2)
A lump sum contract shall consist of an agreed total price for the performance of the
contract. The Entity shall, subject to the conditions of the contract, pay the
contractor the agreed lump sum price, irrespective of the actual quantity, time or
work required for performance of the contract.
(3)
(b)
(c)
milestones in construction;
(d)
(e)
reports or recommendations;
(f)
(g)
software programmes; or
(h)
Rule 134:
(1)
services, where the scope and duration of the contract are difficult to define;
or
(b)
works, which are not well defined, likely to change in quantity or specification
or where difficult or unforeseen site conditions are likely.
(2)
Payments under a unit price contract shall be for the actual quantity delivered or
performed, using fixed unit prices for different items specified in the contract.
(3)
agreed fee rates for a specified period of time, for either nominated
personnel or a certain type or grade of personnel; and
(b)
(4)
For works contracts, payment shall be based on agreed rates for various items of
work, as priced by the contractor in the bill of quantities.
(5)
Unit price contracts shall include a maximum amount of total payments, which may
include a contingency amount for unforeseen work. The Entity shall not exceed the
maximum amount, without obtaining approval for a contract modification.
(6)
The Procurement Office shall monitor unit price contracts closely, to ensure that
progress is in accordance with the contract and that payments claimed by the
contractor are appropriate and in accordance with the contract.
Rule 135:
Framework Contracts
(1)
An Entity may use a framework contract for goods, works or services:
(a)
where the items are needed on call, but where the quantity and timing of
the requirements cannot be defined in advance; or
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(b)
to reduce procurement costs or lead times for items which are needed
repeatedly or continuously over a period of time, by having them available on
a call off basis.
(2)
Payments under a framework contract shall be for the actual quantity delivered or
performed during the time period covered by the contract, using the fixed unit prices
specified in the contract.
(3)
Framework contracts may include an estimated quantity or value, but shall not
commit to purchasing this estimated quantity or value.
(4)
(5)
Rule 136:
Percentage Based Contracts
(1)
An Entity may use a percentage based contract where it is appropriate to relate the
fee paid directly to estimated or actual costs or amounts, such as the value of a
contract or sale.
(2)
The contract shall clearly define the total cost from which the percentage is to be
calculated and the percentage to be paid.
(3)
(b)
(c)
(d)
Rule 137:
Cost Reimbursable and Target Price Contracts
(1)
An Entity may use a cost reimbursable or target price contract for:
(2)
(3)
(a)
emergency works, where there is insufficient time to fully calculate the costs
involved; or
(b)
high risk works, where it is more economical for the Entity to bear the risk of
price variations than to pay the contractor to accept the risk, or where a
contractor will not accept the risk.
the actual cost of the works, as evidenced by receipts and other appropriate
documentation; and
(b)
Where a target price can be agreed, an incentive payment may also be made for any
cost savings.
Rule 138:
Contract for design, supply and erection
(1)
Under a contract for design, supply and erection, the supplier is responsible for
design of the plant, its delivery at project site, assembly of all parts and erection,
testing and commissioning, and also, if specifically indicated in the scope of the
contract, training.
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(2)
Use of the contract for design, supply and erection is appropriate for procurement of
major power plants, pumping stations and the like.
(3)
When a contract for design, supply and erection is utilized, the prequalification
procedure may be applied, and two-stage tendering may be appropriate.
Rule 139:
Turnkey contracts for industrial plant
(1)
A turnkey contract is a contract that only specifies the output and performance of
the industrial plant and the feed stock.
(2)
A turnkey contract may be used for procurement of industrial plants such as fertiliser
plant, milk processing plant and the like.
(3)
In accordance with sub-Rule 139(1), the turnkey contract shall stipulate that the
supplier is responsible for design, procurement of all inputs, delivery and erection at
site, testing, commissioning and, in some cases, operation for an initial period.
(4)
Rule 140:
Design and build contracts
(1)
In the design and build contract, the contractor is responsible for the design and
construction of the structure. The Entity, through its engineers shall verify and clear
the design before the contractor may proceed with the construction.
SECTION C Contract Documents
Rule 141:
Contents of Contract
(1)
Entities shall use the contract form included in the appropriate standard bidding
documents issued by the PPU for drafting individual contract documents.
(2)
The draft contract shall be included in the solicitation documents issued, where
procurement is conducted using the tendering or the request for proposals methods
of procurement. In all other cases, where the draft contract is not included, any
solicitation documents shall clearly state the type of contract and key contract terms
which will apply.
(3)
The contract document shall include all contract terms and conditions. In particular,
the contract document shall include:
(a)
the general conditions of contract or, in the case of purchase orders, at least
a reference to the general conditions which apply;
(b)
(c)
a statement that the special conditions of contract prevail over the general
conditions and the order of priority of other contract documents;
(d)
(e)
the total contract price and, if applicable, the conditions applicable to varying,
adjusting, modifying or recalculating the actual price payable;
(f)
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(4)
(g)
(h)
(i)
(j)
The pricing of a contract shall be in accordance with one of the contract types
permitted in Section B of this Chapter.
Rule 142:
Price Adjustment
(1)
For contracts with a duration of more than twelve(12) months, the Entity may
include a price adjustment provision, where it determines that it is more economical
for the Entity to accept the risk of increased costs than to pay an additional cost for
the contractor to accept the risk.
(2)
(3)
Where a price adjustment provision is included, the contract shall clearly state:
(a)
the formula for calculating adjustments, which shall separate the total price
into components, such as labour, equipment, materials and fuel;
(b)
(c)
any correction factor to take into account differences in the payment currency
and the currencies of the source of the input and price index;
(d)
(e)
(f)
any minimum variation required to qualify for price adjustment and any other
restrictions or conditions.
The contract may also provide that, when the price adjustment provisions results in
an increase exceeding a specified percentage or amount of the contract, the Entity
may either:
(a)
(b)
Rule 143:
Payment Terms
(1)
The period for payment shall be thirty (30) days from the Entitys acceptance of the
contractors invoice, unless this is varied in the special conditions of contract.
(2)
The contract shall provide for compensation to be paid to the contractor, where the
Entity fails to make payment within the period specified in the contract. The contract
shall clearly state the rate to be applied, how compensation payments shall be
calculated and any other conditions relating to payment of compensation.
(3)
The contract shall clearly state the currency or currencies of payment and, where
required, the exchange rates or the source of exchange rates applicable.
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(4)
The contract shall clearly specify the payment schedule, which may include advance
payments, progress payments and retained payments in accordance with Rules 144,
145 and 146.
Rule 144:
Advance Payments
(1)
The contract may provide for advance payments to the contractor, where this is
necessary to ensure effective implementation of the contact or to obtain competitive
prices.
(2)
Advance payments may be made for costs such as mobilization, start up, the
purchase of materials or costs related to goods which are specially or custom
manufactured for the Entity.
(3)
The total amount of an advance payment shall not exceed thirty (30) percent of the
total contract price.
(4)
Unless otherwise specified in the contract, any advance payment shall only be made
against the provision by the contractor of an advance payment guarantee, covering
the full amount of the advance payment and in accordance with rule 148.
(5)
The contract shall state that materials, equipment and personnel for which an
advance payment is received, shall be used only for performance of that contract. A
works contract may require that materials, equipment and personnel for which an
advance payment is received, must be committed to the site or sites of the works.
(6)
Rule 145:
Progress Payments
(1)
The contract may provide for progress payments to the contractor.
(2)
(b)
(3)
Progress payments shall not exceed the cost or value of the goods, works or services
delivered or completed.
(4)
Rule 146:
Retained Payments
(1)
The contract may provide for a specified percentage or amount of payments to the
contractor to be retained.
(2)
(b)
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(c)
(3)
(4)
Where so specified in the contract, the contractor may substitute a payment security
for a retention payment.
The threshold for performance security and retention money together shall not
exceed 15%( fifteen percent) of contract value.
Rule 147:
Payment Documents
(1)
The contract document shall require the contractor to submit an original invoice for
each payment requested.
(2)
The contract document shall clearly state the documents against which payments
shall be made.
(3)
The documents required shall relate to the delivery, progress or performance of the
contract for which the payment is due or provide evidence of fulfilment of contract
terms and conditions . The documents required may include, but not be limited to:
(4)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
Rule 148:
Payment Securities
(1)
Where the contact permits payments to a contractor prior to the delivery or
completion of the goods, works or services to which the payment relates, the
procuring entity shall require a payment security from the contractor, unless
otherwise specified in the contract.
(2)
The value of any payment security shall be equal to the payment to which it relates.
Where appropriate, the value of a security may be progressively reduced, in line with
the contractors progress in delivering or completing the goods, works or services to
which the payment relates.
(3)
The contract shall state that the payment security must be:
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(a)
(b)
(c)
(d)
valid for the period prescribed in the contract, which shall normally be at least
twenty eight (28) days beyond the anticipated due date of the payment.
(4)
(5)
The conditions for forfeiture of the payment security shall be specified in the
contract.
(6)
The Procurement Office shall release the payment security promptly to the
contractor upon completion of all the contractors contractual obligations which are
subject to the security or upon expiry of the security.
(7)
The Procurement Office shall manage payment securities in accordance with Rule
160.
manage the obligations and duties of the Entity specified in the contract; and
(b)
ensure that the contractor performs the contract in accordance with the
terms and conditions of the contract.
(3)
In administering the contract, the contract administrator shall use existing systems.
The administrator shall use existing disbursement systems for making payments to
contractors.
(4)
(b)
(c)
ensuring that the Entity meets all its payment and other obligations on time
and in accordance with the contract;
(d)
ensuring that there is adequate costs, quality and time control, where
required;
(e)
preparing any required contract variations or change orders and obtaining all
required approvals before their issue;
(f)
(g)
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(h)
(i)
ensuring that the contract is complete, prior to closing the contract file;
(j)
ensuring that all contract administration records are kept and archived as
required; and
(k)
ensuring that the contractor and the Entity act in accordance with the Law,
these Rules and the contract.
Rule 150:
Administration of Sub-Contracts
(1)
In accordance with Article 54 of the Law, any subcontracting is subject to the prior
written consent of the Entity.
(2)
The prime contractor shall be responsible for administering any subcontracts and the
Entity shall monitor only the prime contractors management of its subcontracts.
(3)
The Entity shall not directly administer any subcontracts, except where
(a)
(b)
(c)
Rule 151:
Technical Inspection of Goods and Works
(1)
The contract shall state that the Entity has the right to inspect goods or works at any
reasonable time or place, including(a)
(b)
prior to shipment;
(c)
(d)
(2)
The contract shall require contractors to ensure that the Entitys right of inspection is
extended to subcontractors.
(3)
(4)
(a)
(b)
(c)
The contract shall clearly state all requirements relating to inspection, including:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
that samples provided for testing shall be provided free of charge by the
contractor; and
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(h)
that where goods or works fail an inspection, the contractor is liable for the
correction of any defects at his own expense and the costs of any reinspection required.
Rule 152:
Inspection and Acceptance of Goods, Works and Services
(1)
The Entity shall ensure that all goods, works and services are subject to inspection
and verification by an internal auditor, supervising engineer or inspection committee,
as appropriate, prior to their acceptance.
(2)
(3)
(b)
the goods, works or services meet the technical standards defined in the
contract;
(c)
(d)
(e)
Rule 153:
Inspection Committee
(1)
Where justified by the volume of procurement, an Inspection Committee shall be
appointed by the Award Authority, consisting of at least three persons, including:
(a)
(b)
(c)
a representative of the end user, where goods are being procured for a
particular department.
(3)
(4)
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the existing contractor, the end user shall justify the procurement as a single source
procurement and seek approval from the appropriate Award Authority.
Rule 155:
Contract Variations
(1)
Where appropriate, in order to facilitate adaptations to unanticipated events or
changes in requirements, the contract may permit:
(a)
(b)
(2)
(3)
The contract shall include a maximum limit on the variations which may be issued
without a contract modification in accordance with Rule 154.
(4)
The contract shall clearly state any approval requirements relating to contract
variations.
Rule 156:
Contract Termination
(1)
The contract document shall specify the grounds on which the contract may be
terminated and specify the procedures applicable to termination.
(2)
The Procurement Committee shall obtain the approval of the Award Authority which
authorized the original contract, prior to terminating the contract. The request for
approval shall clearly state:
(a)
(b)
actions which have been taken to avoid the need for termination;
(c)
(d)
the costs, if any, for which the Entity will be liable following termination.
(b)
the procurement plan, including the justification for the use of any method
other than open tendering or request for proposals;
(c)
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(2)
(d)
(e)
(f)
(g)
the record of solicitation documents issued, bids received and all bid or
proposal openings;
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
Procurement records shall be kept for a minimum period of five (5) years following
completion or termination of the contract or cancellation of the procurement
proceedings.
Rule 158:
Summary Record of Procurement Proceedings
(1)
The Procurement Office shall prepare a summary record of the procurement
proceedings, containing the information required in Article 66(1) of the Law.
(2)
The summary record shall be made available in accordance with article 66 of the
Law.
Rule 159:
Confidentiality and Disclosure of Records
(1)
In disclosure of the summary record of procurement proceedings, pursuant to Rule
158, in debriefing bidders pursuant to Rule 129 and in any other contexts, the Entity
shall not, except when ordered to do so by a competent court, and subject to the
conditions of such an order, disclose:
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(2)
(a)
(b)
All procurement records shall be made available for inspection upon demand by the
PPU, the Auditor-General and other oversight organs authorised by the laws of the
Islamic Republic of Afghanistan.
Rule 160:
Management of Securities and Similar Documents
(1)
All original securities, negotiable documents, financial instruments or similar
documents received by the Entity shall be kept by the Procurement Office in a safe
or other secure, locked location.
(2)
Copies of the original documents referred to in sub-Rule 160(1) shall be kept in the
procurement records, annotated with details of the location and date of receipt of
the original document.
(3)
The Procurement Office shall maintain a register of all securities and similar
documents in its possession, which shall record at least:
(4)
(a)
(b)
(c)
(d)
(e)
(f)
The Procurement Office shall implement systems and procedures to ensure that:
(a)
(b)
the expiry dates of documents are monitored and the appropriate staff
notified a reasonable period before the expiry of any document;
(c)
(d)
(e)
Rule 161:
Communications
(1)
All communications between the Entity and bidders shall be in writing and
communications in any other form shall be referred to and recorded in writing.
SECTION B Accountability
Rule 162:
Declaration of Conflicts of Interest
(1)
All members of a Procurement Office, Evaluation Committee or Procurement
Committee, all staff involved in contract administration and all Ministers or Director
General and members of the Special Procurement Commission shall, prior to
commencing any procurement activity or the approval of any procurement activity,,
sign a declaration to the effect that they have no relationship of the following types:
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(2)
(a)
a marital or direct birth relationship with a bidder, its legal counsel or its
officers;
(b)
during the last three years, has been an employee or officer of a bidder or
held a financial interest in a bidder;
(c)
Rule 163:
Fraud and Corruption
(1)
The bidders, suppliers, contractors, and consultants shall observe the highest
standard of ethics during the procurement and execution of such contracts.
(2)
In pursuit of this policy and for the purposes of this provision, the terms set forth
below are defined as follows:
(a)
(b)
(c)
(d)
(3)
(4)
Rule 164:
Post-employment Restrictions on Public Officials
(1)
Individuals who served as procurement officers or participated in the approval of any
procurement activities with respect to a procurement shall not:
(a)
(b)
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(2)
The restriction in sub-Rule 164(1) shall remain in effect for the duration of the
procurement proceeding and contract, if any, in question.
Rule 165:
Avoidance of conflicts of interest in consultative services
(1)
The main objective of conflict of interest Rules is to create predictability for current
or future ineligibility.
(2)
Consultants shall provide professional, objective, and impartial advice and at all times
hold the clients interests paramount, without any consideration for future work, and
strictly avoid conflicts with other assignments or their own corporate interests.
(3)
Consultants shall not be hired for any assignment that would, by its nature, be in
conflict with their prior or current obligations to other clients, or that may place them
in a position of not being able to carry out the assignment in the best interest of the
Entity. For example, consultants hired to prepare engineering design for an
infrastructure project shall not be engaged to prepare an independent environmental
assessment for the same project, and consultants assisting a client in the
privatization of public assets shall not purchase, nor advise purchasers of, such
assets.
(4)
Without limitation on the generality of the rule referred to in sub-Rule 165(1) and
165(2), Consultants shall not be hired under the circumstances set forth below:
(5)
(a)
A firm which has been engaged by the Entity to provide goods or works for a
project, and any of its affiliates, shall be disqualified from providing consulting
services for the same project.
(b)
This provision does not apply to the various Contractors (consultants, or suppliers)
that together are performing the suppliers obligations under a turnkey or designand-build contract.
(b)
(c)
(d)
Rule 168:
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(1)
(2)
(3)
(4)
notify the bidder or contractor, giving details of the petition and informing the
bidder or contractor of its right to a hearing or to submit written evidence
prior to any decision to exclude, as long as such evidence is submitted within
ten working days of receipt of the notice; and
(b)
institute an investigation.
(b)
(c)
any hearing shall be organised within ten working days of the request for a
hearing from the bidder or contractor;
(b)
(c)
the hearing shall be recorded and all evidence presented shall be preserved;
and
(d)
During the investigation of any petition to debar a bidder or contractor, the bidder or
contractor shall be permitted to participate in public procurement and shall be
required to continue performance of any contract, but any recommended contract
award to the bidder shall be delayed, pending the outcome of the investigation.
Rule 169:
Decisions to Debar
(1)
Upon completion of its investigation and following any hearing, the PPU shall issue a
written decision, indicating:
(2)
(a)
(b)
(c)
(b)
(c)
the affected Entity, where the petition was not submitted by the Entity.
(3)
Any debarment imposed shall take effect immediately upon issue of the written
decision.
(4)
During the period of any debarment, a bidder shall not be permitted to participate in
any public procurement proceedings, but shall be required to continue performance
of any contracts already awarded.
(5)
The bidder or contractor may appeal against the debarment to the Administrative
Review Committee.
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(6)
The PPU shall maintain a list of excluded bidders, which shall be circulated to all
procuring entities. The PPU shall immediately inform all procuring entities of any
changes to the list, including bidders removed from the list following expiry of their
debarment period.
(b)
details of the provision of the Law, these Rules or other instrument which is
alleged to have been breached;
(c)
(d)
(2)
The application for review shall be submitted in writing to the Head of the procuring
entity, unless a contract has already been awarded.
(3)
The application for review may be submitted in writing to the Administrative Review
Committee established pursuant to Article 72(1) of the Law where:
(4)
(a)
(b)
the Head of the procuring entity has failed to issue a decision within seven
(7) working days of the date of receipt of the application for review; or
(c)
the bidder wishes to appeal against the decision of the Head of the procuring
entity.
Any application for review shall be submitted within ten (10) working days of:
(a)
the date when the bidder became aware of the circumstances giving rise to
the application for review; or
(b)
the date of the Head of the procuring entitys decision or failure to issue a
decision.
Rule 171:
(1)
(2)
Upon receipt of an application for review, the head of procuring entity shall institute
and investigation, which shall consider, where appropriate(a)
(b)
(c)
(d)
The Head of the procuring entity shall issue a written decision within 7 working days
of receipt of the application for review, which shall indicate(a)
(b)
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(c)
(3)
(4)
(b)
(c)
(d)
the PPU
The Head of the entity decision or its failure to decide within the required time may
be submitted through an application to the Administrative Review Committee
established pursuant to Article 72(1) of the Law, within ten (10) working days from
either the decision or expiration of the deadline to issue a decision.
Rule 172:
Review by Administrative Review Committee
(1)
Upon receipt of an application for review, the Chairman of the Administrative Review
Committee shall appoint a Board comprise of a Head experienced in dispute
resolution and two Board members trained and knowledgeable in procurement which
shall decide within ten (10) working days after the receipt of an appeal or an
application for review in accordance with rule 173(2).
(2)
The membership of the Review Board shall be determined taking into account the
nature of the procurement concerned and the experience required.
(3)
The Review Board shall institute an investigation, which shall consider, where
appropriate:
(4)
(5)
(a)
(b)
(c)
(d)
(e)
information in the investigation and decision of the Head of the Entity, where
applicable.
The Review Board shall issue a written decision within ten (10) working days, which
shall indicate:
(a)
(b)
(c)
(b)
(c)
the Entity.
Rule 173:
(1)
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(b)
(2)
(3)
(b)
Where the Administrative Review Committee does not include the skills or experience
required to effectively consider an application for review, the Chairperson of the
Administrative Review Committee shall notify the PPU and request the temporary
appointment of additional members of the Administrative Review Committee, who
have the required skills and experience.
(1)
Each Entity shall establish a Procurement Office and, where appropriate, subsidiary
Procurement Offices for subdivisions of the entity.
(2)
The size and level of staffing of the Procurement Office, and any subsidiary
Procurement Offices, shall be determined by the procurement workload of the Entity,
taking into account the volume, value, complexity and type of procurement
conducted.
(3)
The location and structure of the Procurement Office, and any subsidiary
Procurement Offices, shall be determined by the Entity, in accordance with its
operational requirements.
(4)
The Procurement Office shall include staff with appropriate technical skills, where an
Entity has a significant volume of specialised procurement or procurement requiring
significant technical input.
(5)
Rule 175:
Functions of Procurement Offices
(1)
Pursuant to the functions specified in Article 74(1) of the Law, the Procurement
Office shall:
(a)
(b)
(c)
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(2)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
assist with the inspection and acceptance of goods, works and services,
including participating in Inspection and Receipt Committees as required;
(r)
(s)
Assessment of the quantity and quality of the procured goods, works and
services;
(t)
(u)
(v)
(w)
In conducting its functions, the Procurement Office shall at all times liaise with:
(a)
the end user who initiated the procurement, to ensure that the procurement
meets its needs; and
(b)
the PPU and other oversight bodies, to share appropriate information and
facilitate the conduct of monitoring and other PPU functions.
Rule 176:
(1)
(b)
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(c)
(d)
(e)
(f)
(g)
Discharging any other duties or functions as provided for by Law or the Rules
of Procedure.
Rule 177:
(1)
(2)
(3)
Rule 178:
(1)
(2)
(3)
Where any member of the Procurement Committee has a conflict of interest in any
submission, he shall declare his interest in the submission, leave the meeting while
the matter is considered and shall not participate in the deliberations or decisionmaking process of the Committee in relation to that submission.
(4)
(5)
The secretary of the Procurement Committee shall record minutes of all Procurement
Committee meetings, which shall include:
(a)
a register of attendance;
(b)
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(c)
the decision made for each submission, including any major issues discussed,
the reasons for any rejections and any clarifications or minor amendments to
which the approval is subject;
(d)
(e)
Rule 179:
(1)
(2)
approve a submission;
(b)
(c)
modify a submission; or
(b)
(3)
Any submission rejected by Award Authority may be corrected and resubmitted and
the Award Authority shall provide explanation and justification of its reasons for any
rejection, in order to assist the Procurement Committee and Procurement Office in
remedying any defects in the submission.
(4)
Where Award Authority has a conflict of interest in any submission, he shall declare
his interest in the submission and refer it to the Special Procurement Commission for
a decision.
(5)
(6)
All decisions of Award Authority, including reasons for any rejections, shall be
recorded and notified to the Procurement Committee in writing.
(7)
Where any contract award or contract modification is beyond his authority level, the
Award Authority shall verify the submission made and promptly submit it to the
Special Procurement Commission.
(1)
(2)
(3)
(a)
modify a submission; or
(b)
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(4)
All decisions of the Special Procurement Commission, including reasons for any
rejections, shall be recorded and notified to the procuring entity in writing.
(5)
In the case of state owned enterprises and public companies, the rules applicable to
approval by the Special Procurement Commission shall apply to the Board of
Directors, or other individual or body specified in accordance with provisions of
Article 91(2) of the Law or such other instructions issued by PPU in accordance with
Rule 184.
Rule 181:
(1)
The Special Procurement Commission shall establish and circulate to all Entities a
regular schedule of meetings, to facilitate the processing of submissions by Entities.
(2)
(3)
(4)
(5)
Where any member of the Special Procurement Commission has a conflict of interest
in any submission, he shall declare his interest in the submission, leave the meeting
while the matter is considered and shall not participate in the deliberations or
decision-making process of the Committee in relation to that submission.
(6)
(7)
The Special Procurement Commission shall maintain minutes of all its meetings,
which shall include:
(a)
a register of attendance;
(b)
(c)
the decision made for each submission, including any major issues discussed,
the reasons for any rejections and any clarifications or minor amendments to
which the approval is subject; and
(d)
Rule 182:
(1)
liaise with all Entities, as part of the annual procurement planning process
and on an ongoing basis, to establish a list of common use items and
estimated needs;
(b)
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(2)
The list of common use items established pursuant to sub-Rule 182(1)(a) shall be
limited to items where the benefits of centralized purchasing can be demonstrated.
(3)
(b)
Rule 183:
(1)
(b)
(2)
The CMO shall have overall responsibility for planning and executing the work of the
Special Procurement Commission as well as record keeping. It shall be responsible
for the execution of all rules and policies and shall attend to statutory requirements
imposed on the Special Procurement Commission.
(3)
The CMO shall be responsible for the management of day-to-day affairs of the
Special Procurement Commission and shall have liaison with the Entities and other
agencies for any matter pertaining to the day-to-day operation of the Special
Procurement Commission.
In revising thresholds in accordance with article 82 of the Law, the PPU may set
different thresholds for different types of Entities, including:
(a)
(b)
(c)
Local Governments.
(2)
The PPU may also set different thresholds for the central or head offices of Entities
and provincial, district or branch offices.
(3)
Where the PPU considers it appropriate, it may subdivide types of Entity into
categories and set different thresholds for each category.
(4)
Where different thresholds are set for different categories of Entity, the PPU shall
publish a list of the Entities in each category.
(5)
the need for each Entity to process its procurement in an efficient manner,
taking into account its procurement budget and workload;
(b)
the capacity of each Entity and its award authorities to manage its
procurement.
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Rule 185:
(1)
Without revising the thresholds, prescribed for an Entity, in accordance with Rule
184, where justified to facilitate fast-track procurement, the PPU may accord special
permission to an Entity for any specific procurement on a case-by-case basis for
application of a higher threshold for the selected procurement method.
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In accordance with Rule 4(1), the PPU shall issue circulars on measures and
programmes for the promotion and facilitation of participation by small enterprises in
public procurement. Such measures and programmes may include, but shall not be
limited to:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
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In accordance with rule 5(1), the PPU may issue circulars on procedures for the
participation of the end user or beneficiary community in the delivery of goods,
works or services required. Such procedures shall be in accordance with the
principles in this Annex.
Article 2:
Application of Procedures
(1)
Procedures issued by the PPU shall clearly state the circumstances in which they can
be applied.
(2)
Procedures for end user and community participation shall normally only apply to
programmes:
(3)
(a)
(b)
Procedures for end user and community participation shall not normally be used
where:
(a)
(b)
the implementation of the project by a contractor would offer better value for
money, taking into account economy, quality and the need to promote
effective utilization.
Article 3:
(1)
An agreement shall be signed between the procuring entity and the end user
community, defining:
(a)
(b)
(c)
(d)
(e)
(f)
the budget for the goods, works or services, any funds to be paid to the
Community Participation Committee and how funding will be managed and
accounted for; and
(g)
Article 4:
(1)
(2)
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(3)
Subject to the agreement between the procuring entity and the Community
Participation Committee, the committee shall normally be responsible for:
(a)
(b)
(c)
(d)
the ongoing repair, maintenance, management and use of any goods, works
or services delivered; and
(e)
any other functions specified in the agreement between the procuring entity
and the Community Participation Committee.
Article 5:
(1)
ensure that realistic cost estimates are prepared for the project and that
sufficient funds are available;
(b)
(c)
ensure that all funds used by the Community Participation Committee are
properly accounted for;
(d)
(e)
(f)
Article 6:
(1)
Procedures issued by the PPU and/or the agreement entered into by the procuring
entity and the Community Participation Committee shall specify:
(a)
(b)
(c)
(d)
(2)
(3)
(4)
Members of the Community Participation Committee shall be held responsible for any
misuse of funds.
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In accordance with Rule 6(1), the PPU shall issue circulars on measures and
programs to promote environmental protection in public procurement. Such
measures and programs shall be in accordance with the following objectives:
(a)
(b)
(c)
(d)
(e)
Article 2:
(1)
Objectives
The measures and programs issued by the PPU to promote environmental protection
in public procurement may include, but shall not be limited to:
(a)
ensuring that the evaluation of bids takes into account whole lifecycle costs,
including operating and disposal costs;
(b)
(c)
(d)
(e)
(f)
(g)
(h)
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(i)
Page 91 of 106
In accordance with Rule 7(1), the PPU shall issue circulars on measures and
programs to introduce the use of information and communications technology in
public procurement. Such measures and programs shall be in accordance with the
following principles:
(a)
(b)
(c)
Article 2:
(1)
Principles
Principal elements in the information and communications technology used for public
procurement may include, but not be limited to(a)
(b)
(c)
(d)
(e)
(f)
facilities for electronic procurement, such as the use of purchase cards for
small purchases, and electronic catalogue shopping for standard goods;
(g)
(h)
(i)
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(1)
The purpose of this Annex is to establish detailed rules and procedures related to the
conduct of design contests, with a view to fulfilling the objectives and implementing
the provisions of the Law.
(2)
For the purposes of this Annex, design contests means those procedures that
enable the procuring entity to acquire, mainly in the fields of area planning, town
planning, architecture and engineering or data processing, a plan or design selected
by a jury after being put out to competition with or without the award of prizes.
(3)
Procuring entities may conduct design contests, with or without prizes, to acquire the
required plans and projects relating to architecture, landscaping, engineering, urban
design projects, urban and regional planning, and fine arts.
(4)
The rules for the organization of a design contest shall be in conformity with the
requirements of this Annex and shall be consistent with the Law and these Rules.
Article 2:
(1)
For the purposes of valuation of design contests and the application to design
contests of monetary thresholds in the Law and other applicable legislation:
(a)
(b)
in case of design contests with prizes, all contest awards and other amounts
payable to the participants in the design contest shall be used.
Establishment of jury
(1)
(2)
Article 4:
(1)
Composition of jury
Article 5:
Jury procedures
(1)
At its first meeting, the jury shall elect a chairman and a secretary.
(2)
The decisions of the jury shall be taken by a majority vote, with a separate vote on
each design. If the vote is equally divided, the chairman shall have the decisive vote.
All decisions of the jury shall be final, subject to Article 27 of this Annex.
(3)
A report of the meetings, including explanations of the decisions of the jury with
respect to each plan or design submitted, shall be drawn up by the secretary and
signed by the chairman and all members of the jury.
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(4)
Contest notice
(1)
Procuring entities who wish to carry out a design contest shall make known their
intention by means of a contest notice.
(2)
In addition to publication in accordance with Rule 50, the notice shall be published in
technical journals and reviews relevant to the subject matter of the design contest.
(3)
Notices of design contests shall be published not less than thirty days prior to the
date for the receipt of designs.
Article 7:
(1)
The design contest notice shall contain at least the following information:
(a)
The name, address, fax number and electronic address of the procuring
entity and, if different, of the organization from which additional information
may be obtained;
(b)
(c)
(d)
(e)
In the case of open contests, the final date for receipt of plans or designs;
(f)
(iii)
(iv)
(g)
(h)
(i)
The place from which and the manner in which candidates may obtain the
contest documents, including the deposit, if any, to be paid for the
documents;
(j)
(k)
(l)
(m)
Article 8:
(1)
Extent of participation
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criteria. The procuring entity may restrict participation only on the basis of those
criteria.
(2)
Article 9:
Subvention of participation
(1)
(2)
Article 10:
(1)
Non-discrimination
The conditions and contest documents of a contest shall be identical for all
participants.
The procuring entity shall supply participants with all the documentation necessary
for drawing up their designs. If there is a deposit to be paid for the documentation,
the deposit shall be refunded to the candidates that participate in the contest.
Article 12:
(1)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
The exact use to which the procuring entity intends to put the prize-winning
design;
(i)
(j)
The date of the public exhibition of the designs submitted in the contest; and
(k)
The name, title and contact details of one or more officers of the procuring
entity who are authorised to communicate directly with and to receive
communications directly from participants in connection with the procurement
proceedings, without the intervention of an intermediary.
Page 95 of 106
(2)
A clear distinction shall be made in the contest documents between conditions that
are compulsory and those that leave participants freedom in interpretation, which
should be as wide as possible.
(3)
The contest documents shall indicate that, in principle, the procuring entity shall use
the metre as the scale for designs and plans. In cases where this is not done, a
metric equivalent shall be given in the contest documents.
(4)
The procuring entity shall endeavour to reduce to a minimum, in all cases, the
number and size of the documents and drawings required to be submitted.
(5)
The procuring entity shall give, on an equal basis, to all participants in the second
stage of a two-stage contest all of the supplementary information necessary for
drawing up designs and plans to be submitted in the second stage.
Article 13:
(1)
The designs and plans submitted by participants for consideration by the jury shall
be presented to the procuring entity for transmission to the jury in such a manner as
to ensure their anonymity before and during the evaluation, comparison and award
stages.
Article 15:
(1)
(2)
In contests that consist of two stages, only those competitors who are successful in
the first part shall be admitted to the final contest.
(3)
Designs and plans submitted in the first stage shall be kept confidential until the
results of the second stage have been announced.
(4)
The list of participants admitted to the final contest shall be drawn up and published
in alphabetical order.
(5)
Participants admitted to the second stage of contests shall receive from the
procuring entity all the supplementary information necessary for drawing up designs
and plans to be entered in the final contest.
Article 16:
(1)
Decisions and opinions concerning the designs and plans shall be made only on the
basis of the criteria and conditions set forth in the notice announcing the design
contest and in the contest documents.
(2)
All drawings, photographs, models or documents other than those specified in the
program shall be excluded from consideration, and shall be eliminated before
examination of the plan.
(3)
The jury shall disqualify any plan not in conformity with the conditions set forth in
the contest documents.
Article 17:
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(1)
The winning design or plan shall be selected exclusively on the basis of criteria and
conditions set forth in the contest notice and documents.
Article 18:
Notice of results
(1)
Procuring entities shall publish a notice of the results of the award procedure and
send a copy of the notice directly to all participants.
(2)
(3)
(a)
Name, address, fax number and electronic address of the procuring entity;
(b)
Project description;
(c)
Number of participants;
(d)
(e)
(f)
(g)
The notice shall be published in the same publications utilized for publication of the
design contest notice.
The amount of the prizes shall be proportional to the size of the project, the work
involved and the expenses incurred by participants.
Article 20:
(1)
Amount of prizes
Distribution of prizes
Prizes shall be distributed within 30 days of the announcement of the results of the
contest, unless otherwise specified in the contest documents.
Article 21:
Use of designs
(1)
The winning design may not be put to any use other than that expressly stated in
the contest documents. No other design, whether or not it is awarded a prize, may
be used in whole or in part by the procuring entity except by special agreement with
the respective participant.
(2)
In cases where the procuring entity wishes to use a prize-winning design for other
purposes, or to modify it, a fresh agreement to that effect shall be concluded
between the procuring entity and the author of the design or plan.
Article 22:
(1)
The author of any design shall retain the artistic copyright in his work and no
alterations may be made without his written consent.
(2)
The design winning the first prize shall become the property of the procuring entity.
(3)
(4)
Unless otherwise specified in the contest documents, the author of any design shall
retain the right of reproduction.
Exhibition of designs
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(1)
Following the conclusion of the deliberations of the jury, the designs submitted in the
contest shall be publicly exhibited. In addition to the designs themselves, all
documents and drawings, as well as the report and decisions of the jury bearing the
signatures of the chairman and of all members shall be exhibited.
(2)
The procuring entity shall notify the participants at least seven days prior to the date
of the exhibition of the date and place of the exhibition. The procuring entity shall
also arrange for the publication of the date and place of the exhibition in the same
publications in which the design contest notice was published.
Article 24:
Standards of conduct
(1)
The members of the jury shall undertake not to be guided in their work by any
consideration other than their own conscience, the interests of the contest and the
public interest.
(2)
No member of the jury shall take part, either directly or indirectly, in the contest, nor
be entrusted, either directly or indirectly, with work connected with the execution of
the winning design.
(3)
(4)
In their conduct, the members of the jury and participants in the contest are subject
to the conduct and ethics principles set forth in the Law and these Rules.
Article 25:
Cancellation of contest
(1)
The procuring entity retains the right to cancel the contest at any stage prior to the
announcement of a winning design. In the event of a cancellation, the procuring
entity shall refrain from the utilization of any designs that have been submitted.
(2)
In the event of the cancellation of a contest for which participants have been
officially registered, the procuring entity may compensate the participants for work
actually carried out in connection therewith, in accordance with conditions set forth
in the contest documents.
Article 26:
(1)
The procuring entity shall prepare a record of the design contest containing at least
the following information:
(a)
the name, address and other contact details of the procuring entity;
(b)
(c)
(d)
the name and address of the person who submitted the award-winning
design;
(e)
(f)
the total value of the design contest awards and other amounts payable to
the participants in the contest;
(g)
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(h)
Article 27:
(1)
the report of the jury, signed by the chairman and the members,
summarizing and explaining the deliberations and decisions of the jury with
respect to the evaluation and comparison of the designs submitted in the
contest, and stating the grounds for the selection of the winning design.
Review
Chapter VII of the Law shall apply to the resolution of complaints from participants
concerning the conduct of design contests.
Page 99 of 106
The selection of the contractor shall be conducted in accordance with the Law and
these Rules, subject to the provisions of this annex.
(1)
(2)
(3)
(a)
(b)
(c)
Where already known, a summary of the main required terms of the contract
to be entered into;
(d)
The manner and place for the submission of applications for pre-qualification
and the deadline for the submission, expressed as a specific date and time,
allowing sufficient time for bidders to prepare and submit their applications;
and
(e)
To the extent not already required by Article 18(2) of the Law, the pre-qualification
documents shall include at least the following information:
(a)
(b)
(c)
Whether the procuring entity intends to request only a limited number of prequalified bidders to submit proposals upon completion of the pre-qualification
proceedings in accordance with section B Article 5 of this Annex, and, if
applicable, the manner in which this selection will be carried out;
(d)
Article 3:
(1)
Pre-qualification criteria
(b)
Sufficient ability to manage the financial aspects of the project and capability
to sustain its financing requirements; and
(c)
Article 4:
Participation of consortia
(1)
The procuring entity, when first inviting the participation of bidders in the
procurement proceedings, shall allow them to form bidding consortia. The
information required from members of bidding consortia to demonstrate their
qualifications in accordance with section B Article 2 of this Annex shall relate to the
consortium as a whole as well as to its individual participants.
(2)
(3)
When considering the qualifications of bidding consortia, the procuring entity shall
consider the capabilities of each of the consortium members and assess whether the
combined qualifications of the consortium members are adequate to meet the needs
of all phases of the project.
Article 5:
(1)
(2)
Shortlist
(b)
Where the procuring entity invites proposals from only a limited number of bidders, it
shall rate the bidders that meet the pre-qualification criteria and select the bidders
that best meet the pre-qualification criteria. The rating shall be based on the prequalification criteria and the manner of rating the bidders shall be stated in the prequalification documents.
(1)
The procuring entity shall provide the Request for Proposals and related documents,
drafted in accordance with section C Article 6 of this Annex, to each pre-qualified
bidder that pays the price, if applicable, charged for those documents.
(2)
Notwithstanding the above, the procuring entity may use a two-stage procedure to
request proposals from pre-qualified bidders when the procuring entity does not
deem it to be feasible to describe in the request for proposals the characteristics of
the project such as project specifications, performance indicators, financial
The initial request for proposals shall call upon the bidders to submit, in the
first stage of the procedure, initial proposals relating to project specifications,
performance indicators, financing requirements or other characteristics of the
project as well as to the main contractual terms proposed by the procuring
entity;
(b)
The procuring entity may convene meetings and hold discussions with any of
the bidders to clarify questions concerning the initial request for proposals or
the initial proposals and accompanying documents submitted by the bidders.
The procuring entity shall prepare minutes of any such meeting or discussion
containing the questions raised and the clarifications provided by the
procuring entity;
(c)
(d)
In the second stage of the proceedings, the procuring entity shall invite the
bidders to submit final proposals with respect to a single set of project
specifications, performance indicators or contractual terms.
Article 7:
(1)
To the extent not already required by Rule 85, the request for proposals shall include
at least the following information:
(a)
(b)
(c)
(d)
The criteria for evaluating proposals and the thresholds, if any, set by the
procuring entity for identifying non-responsive proposals; the relative weight
to be accorded to each evaluation criterion; and the manner in which the
criteria and thresholds are to be applied in the evaluation and rejection of
proposals.
Article 8:
(1)
Bid securities
The request for proposals shall set forth the requirements with respect to the issuer
and the nature, form, amount and other principal terms and conditions of any
required bid security.
(2)
A bidder shall not forfeit any bid security that it may have been required to provide,
other than in cases referred to in Article 42(2) of Law, and in case of
(a)
Failure to enter into final negotiations with the procuring entity pursuant to
section C Article 11 of this Annex;
(b)
Failure to submit its best and final offer within the time limit prescribed by the
procuring entity pursuant to section C Article 11(2) of this Annex;
(c)
Failure to provide required security for the fulfilment of the contract after the
proposal has been accepted or to comply with any other condition prior to
signing the contract specified in the request for proposals.
Article 9:
(1)
(2)
Evaluation criteria
The criteria for the evaluation and comparison of the technical proposals shall include
at least the following(a)
Technical soundness;
(b)
(c)
Operational feasibility;
(d)
The criteria for the evaluation and comparison of the financial and commercial
proposals shall include, as appropriate:
(a)
The present value of the proposed tolls, unit prices and other charges over
the operational period;
(b)
The present value of the proposed direct payments by the procuring entity, if
any;
(c)
The costs for design and construction activities, annual operation and
maintenance costs, present value of capital costs and operating and
maintenance costs;
(d)
The extent of financial support, if any, expected from any public authority of
Afghanistan;
(e)
(f)
(g)
Article 10:
(1)
The procuring entity shall compare and evaluate each proposal in accordance with
the evaluation criteria, the relative weight accorded to each such criterion and the
evaluation process set forth in the request for proposals.
(2)
For the purposes of paragraph (1), the procuring entity may establish thresholds
with respect to quality, technical, financial and commercial aspects. Proposals that
fail to achieve the thresholds shall be regarded as non-responsive and rejected from
the procurement proceeding.
Article 11:
(1)
Final negotiations
The procuring entity shall rank all responsive proposals on the basis of the evaluation
criteria and invite the bidder that has attained the highest ranking for final
negotiation of the procurement contract. Final negotiations shall not concern those
contractual terms, if any, that were stated as non-negotiable in the final request for
proposals.
(2)
If it becomes apparent to the procuring entity that the negotiations with the bidder
invited will not result in a contract, the procuring entity shall inform the bidder of its
intention to terminate the negotiations and give the bidder reasonable time to
formulate its best and final offer. If the procuring entity does not find that proposal
acceptable, it shall terminate the negotiations with the bidder concerned. The
procuring entity shall then invite for negotiations the other bidders in the order of
their ranking until it arrives at a procurement contract or rejects all remaining
proposals. The procuring entity shall not resume negotiations with a bidder with
whom negotiations have been terminated pursuant to this paragraph.
The procuring entity may negotiate a procurement contract without using the
procedures set forth in sections B and C of this Annex where:
(a)
there is an urgent need for ensuring continuity in the provision of the service
and engaging in the procedures set forth in sections B and C of this Annex
would be impractical, provided that the circumstances giving rise to the
urgency were neither foreseeable by the procuring entity nor the result of
dilatory conduct on its part; or
(b)
the project is of short duration and the anticipated initial investment value
does not exceed the amount set by the PPU by circular; or
(c)
Where there is only one source capable of providing the required service,
such as when the provision of the service requires the use of intellectual
property, trade secrets or other exclusive rights owned or possessed by a
certain person or persons; or
(d)
(e)
Article 13:
(1)
Where a procurement contract is negotiated without using the procedures set forth
in sections B and C of this Annex, the procuring entity shall cause a notice of its
intention to commence negotiations in respect of a contract to be published in
accordance with Rule 50.
As an exception to sections B and C of this Annex, the procuring entity may consider
unsolicited proposals pursuant to the procedures set forth in section E of this Annex,
provided that such proposals do not relate to a project for which procurement
procedures have been initiated or announced.
Article 15:
Procedures
proposals
for
determining
the
admissibility
of
unsolicited
(1)
(2)
(3)
Article 16:
(1)
(2)
Except in the circumstances set forth in section D Article 12 of this Annex, the
procuring entity shall, if it decides to implement the project, initiate a procurement
proceeding in accordance with sections B and C of this Annex if the procuring entity
considers that:
(a)
The envisaged output of the project can be achieved without the use of
intellectual property, trade secrets or other exclusive rights owned or
possessed by the proponent; and
(b)
Article 17:
(1)
If the procuring entity determines that the conditions of section E Article 16(1) of this
Annex are not met, it shall not be required to carry out a procurement procedure
pursuant to sections B and C of this Annex. However, the procuring entity may still
Where the procuring entity intends to obtain elements of comparison for the
unsolicited proposal, the procuring entity shall publish a description of the essential
output elements of the proposal with an invitation for other interested parties to
submit proposals by a specified deadline.
(3)
If no proposals are received, the procuring entity may engage in negotiations with
the original proponent.
(4)
The procuring entity shall treat proposals in such a manner as to avoid the disclosure
of their content to competing bidders. Any discussions, communications and
negotiations between the procuring entity and a bidder shall be confidential. Unless
required by law or by a court order or permitted by the request for proposals, no
party to the negotiations shall disclose to any other person any technical, price or
other information in relation to discussions, communications and negotiations
without the consent of the other party.
Article 19:
(1)
Confidentiality
The procuring entity shall publish notices of the proposed award and contract award
in accordance with Rule 123.