LOCAL AUTHORITIES PROCUREMENT AND ASSET DISPOSAL: SUBSIDIARY LEGISLATION

INDEX TO SUBSIDIARY LEGISLATION

Local Authorities Procurement and Asset Disposal Regulations

LOCAL AUTHORITIES PROCUREMENT AND ASSET DISPOSAL REGULATIONS

(section 46)

(10th July, 2009)

ARRANGEMENT OF REGULATIONS

REGULATION

PART I
Preliminary

1. Citation

2. Interpretation

3. Application of Regulations

4. Procedure on disputes to application

5. International obligations

PART II
Functions and Powers of Procuring and Disposing Entity

6. Responsibility of procuring and disposing entity

7. Functions of procuring and disposing entity

8. Powers of procuring and disposing entity

9. Procedure in case of disagreement

PART III
Public Procurement Rules and Processes

10. Preference and reservation

11. Records for inspection

12. Contents of procurement records

13. Contents of contract management records

14. Safe keeping of documents

15. Communication

16. Process of procurement

17. Cancellation of procurement process

18. Contents of work plan

19. Matters to be considered in planning

20. Aggregation of requirements

21. Splitting of requirements

22. Division into lots

23. Common procurement by procuring and disposing entity

24. Common procurement by local authorities

25. Approval arrangements under common procurement

26. Initiation of procurement requirement

27. Availability of funds

28. Confirmation of funding

29. Subcontracting

PART IV
Choice of Procurement Methods

30. Procurement methods

31. Open domestic bidding

32. Open international bidding

33. Restricted domestic bidding

34. Restricted international bidding

35. Quotation proposal procurement

36. Micro procurement

37. Direct procurement

38. Emergency situations

PART V
Bidding Process

39. Method for selection of bidders

40. Bid notices

41. Shortlist of bidders

42. Selection of single or sole bidder

43. Pre-bid meetings

44. Bidding packages

45. Clarification and amendment of bidding packages

46. Bidding period

47. Minimum bidding period

48. Format of bids

49. Bid validity

50. Bid security

51. Bid currency

52. Bid submission methods

53. Withdrawal, etc., of bids

54. Receipt of bids by local authority

55. Receipt of bids in person and bid closing

56. Receipt of bids by bid box and bid closing

57. Bid opening

58. Procedure for bid opening

59. Record of bid opening

60. Single or limited bid responses

61. Complaints on bidding process

PART VI
Evaluation Process

62. Evaluation

63. Evaluation criteria

64. Compliance and responsiveness to bids

65. Change to bid details

66. Material and non-material deviation

67. Stages of evaluation

68. Preliminary examination

69. Detailed evaluation

70. Financial comparison

71. Evaluation methodologies

72. Quality and cost based selection

73. Quality based selection

74. Fixed budget selection

75. Least cost selection

76. Technical compliance selection

77. Evaluation report

78. Post-qualification criteria

79. Procedure for negotiations

80. Award of contract

81. Public notice of best evaluated bidder

PART VII
Contract Management

82. Types of contracts

83. Lump sum contract

84. Time based contract

85. Admeasurement contract

86. Framework contract

87. Percentage contract

88. Cost reimbursable contract

89. Target price contract

90. Retainer contract

91. Contingency or success fee contract

92. Other contracting arrangements

93. Contract pricing

94. Price adjustment

95. Payment terms

96. Payment method

97. Payment structure

98. Advance payment

99. Interim and stage payment

100. Retained payment

101. Payment security

102. Payment document

103. Payment to contractor

104. Payment period

105. Payment and payment delays

106. Currency of payment and exchange rate movements

107. Variation or change order

108. Contract amendment

109. Termination of contract

PART VIII
Procurement of Supplies

110. Standardisation policy

111. Statement of requirements for supplies

112. Use of brand name

113. Bidding packages for supplies

114. Types of contract under supplies

115. Scope of contract for supplies

116. Delivery terms under supplies

117. Insurance for supplies

118. Inspection and testing

PART IX
Procurement of Works

119. Statement of requirements for works

120. Bidding packages for works

121. Evaluation for works

122. Types of contracts for works

123. Scope of contract for works

124. Insurance and indemnity for works

125. Transfer of property for works

PART X
Procurement of Services

126. Statement of requirements for services

127. Bidding packages for services

128. Availability of staff

129. Evaluation for services

130. Types of contracts for services

131. Insurance and indemnity for services

132. Property for services

PART XI
Disposal of Public Assets

133. Disposal planning

134. Initiation of disposal requirements and approval of disposal

135. Methods of disposal

136. Public auction

137. Public bidding

138. Sale to public officials

139. Direct negotiation

140. Trade-in

141. Transfer to another local authority

142. Conversion or classification into another form

143. Destruction of assets

144. Valuation

145. Description of assets

146. Solicitation of bids

147. Bidding packages for disposal

148. Inspection of assets

149. Evaluation under the disposal process

150. Rebidding due to identical bids

151. Evaluation based on price only

152. Evaluation based on price and other factors

153. Negotiations

154. Failure to reach the reserved price

155. Award of contract for disposal

156. Signature of contracts

Schedule

S.I. 54, 2009,
S.I. 80, 2014.

PART I
Preliminary (regs 1-5)

1. Citation

These Regulations may be cited as the Local Authorities Procurement and Asset Disposal Regulations.

2. Interpretation

In these Regulations, unless the context otherwise requires—

“award” means a decision by an Adjudication Committee, any other subsidiary body or subdivision of a local authority to which the Accounting Officer may delegate powers of adjudication and award within a specified financial threshold and time frame, to determine the successful bidder;

“best practices” means the applicable industry standards;

“bid notice” means any advertisement by which eligible providers are invited to submit written offers to provide works, services and supplies, or any combination thereof;

“bidding packages” includes invitation to tender, solicitation documents, statement of requirements or any other documents inviting bidders to participate in procurement or disposal proceedings, and includes documents inviting potential bidders to pre-qualify;

“contract” means an agreement between a local authority and a contractor or provider, resulting from the application of the appropriate and approved procurement or disposal method and proceedings and shall be concluded in pursuance of a bid award decision of an Adjudication Committee or a procuring and disposing entity subject to the financial ceiling in force;

“contract management” means the management of a contract including, but not limited to, performance and compliance with the terms and conditions of the awarded contract by the provider and a local authority;

“contract manager” means the officer appointed by the head of a procuring and disposing entity to co-ordinate a bid or disposal activity and to provide all clarification on the said activity to the Accounting Officer, the Adjudication Committee, the Evaluation Committee, the Performance Monitoring Committee, and the department responsible for purchasing and supplies or inventory and asset management, as may be required and thereafter, to be responsible for the implementation of the award or the execution of the contract;

“day” means a working day, which is any day of the week, except Saturday, Sunday and public holidays;

“disposal process” means the successive stages in the disposal cycle, including planning, choice of method of disposal, measures to solicit offers from bidders, examination and evaluation of such offers and award of contract;

“emergency” means circumstances which are urgent, unforeseeable and not caused by negligent conduct;

“foreign bidder” means a person participating in a public procurement or asset disposal activity and whose principal operations are not registered or based in Botswana;

“foreign provider” means a contractor who is not a citizen provider and whose principal operations are not registered or based in Botswana;

“framework contract” means a contractual arrangement which allows a local authority to procure works, services or supplies that are needed continuously or repeatedly at an agreed price, over a period of time, through the placement of a number of orders;

“guidelines” means directives issued by the Competent Authority;

“industry standards” means standards defined and codified by internationally recognised providers associations and professional bodies in the respective fields and shall include best practices;

“non-professional services” include commercial services of a skilled or non-skilled nature, but are not limited to, cleaning, security, travel, insurance, banking, maintenance, or repair services;

“pre-qualification” means a screening process designed to ensure that invitations to bid are confined to capable providers;

“procurement process” means the successive stages in the procurement cycle, including planning, choices of procurement method, measures to solicit offers, adjudication and award of bid and contract management or execution;

“professional services” means services of an intellectual or advisory nature, provided by practitioners who are skilled and qualified in a particular field or profession;

“public asset” means all property owned by a local authority, tangible and intangible;

“purchasing and supply department” means the department of a local authority vested with responsibility for purchasing, and supply and the management of the inventory and assets;

“records” means any documents relating to any stage of a procurement or disposal process and shall be the original documents, unless otherwise stated in writing by the Competent Authority;

“registered contractor” means a contractor registered under the register maintained under section 116 of the Public Procurement and Asset Disposal Act (Cap. 42:08) by the Public Procurement and Asset Disposal Board; and

“procuring and disposing entity” means a user department, division, branch or section of a local authority, including any project unit established by and operating under a local authority, which initiates procurement and is the user of the requirements.

3. Application of Regulations

These Regulations shall apply to all public procurement and disposal of public assets of a local authority.

4. Procedure on disputes to application

(1) Disputes regarding the applicability of these Regulations shall be submitted in writing to the Competent Authority by the Accounting Officer of a local authority 15 days from the date the local authority first became aware of the circumstances giving rise to the dispute.

(2) A submission of disputes in subregulation (1) shall include—

(a) a full detail of the local authority funding, including the source and amount of its funds, any legislation, document or other agreement applicable to the funding; and

(b) a clear statement of the dispute as regards the Regulations.

(3) The Competent Authority shall issue its decision in writing within 10 days from receipt of the dispute.

(4) The decision shall indicate—

(a) whether or not the Regulations apply to the procurement and disposal activities of which the local authority has complained about, giving reasons; and

(b) if the Regulations apply only to a part of the procurement and disposal activities of the local authority, the part to which they apply, including a clear definition of funding, activities or expenditure which is subject to these Regulations.

5. International obligations

(1) Where an international agreement requires a local authority to use an alternative procurement or disposal procedure, the local authority shall apply to the Competent Authority in writing, seeking permission to use such alternative procedure and shall submit, together with the application, supporting documentation that shall include a copy of the international agreement embodying the obligation.

(2) The Competent Authority shall issue its decision within 10 days from receipt of an application made under subregulation (1).

PART II
Functions and Powers of Procuring and Disposing Entity (regs 6-9)

6. Responsibility of procuring and disposing entity

A procuring and disposing entity shall be responsible for the management of all procurement activities within its jurisdiction, in accordance with the provisions of the Act and these Regulations.

7. Functions of procuring and disposing entity

A procuring and disposing entity shall—

(a) plan all procurement and disposal activities of the department and prepare an annual operational plan;

(b) integrate the annual procurement and disposal plan with the sector budget, both recurrent and capital;

(c) obtain certification of the availability of funds from the Accounting Officer before initiating a procurement activity;

(d) prepare the commitment and control ledger jointly with the finance department for the procurement activity in order to properly record and account for expenditure on the procurement cycle;

(e) manage all stages of the procurement or disposal cycle, except evaluation, adjudication and review;

(f) prepare bidding and pre-qualification documents, which shall include—

(i) determining the procurement and disposal method to be used,

(ii) preparing the statement of requirements,

(iii) setting out the specific conditions to be satisfied, defining the evaluation criteria to be used, the weights to be attached to each and the methodology for the evaluation process,

(iv) costing the bid or disposal activity,

(v) prescribing the particular conditions of contract required for the successful execution of the award,

(vi) managing pre-bid meetings and recording the proceedings,

(vii) issuing amendments to bid and pre-qualification where necessary and permitted,

(viii) appointing one official of the department as contract manager, to provide all clarification required on a bid or pre-qualification activity to the Evaluation Committee, the Adjudication Committee, the Accounting Officer and the Performance Monitoring Committee, as may be required;

(g) execute the decision of the Adjudication Committee;

(h) prepare and issue contracts;

(i) administer and manage the contract once placed;

(j) initiate contract amendment, prepare amendments, obtain approval from the Adjudication Committee;

(k) prepare progress reports or any related reports required on implementation of awards, as may be required by the Accounting Officer; and

(l) liaise with the Secretariat to ensure that submissions to the Evaluation and Adjudication Committee are correct and submitted on time.

8. Powers of procuring and disposing entity

In exercise of its functions, the procuring and disposing entity shall—

(a) act independently of the Evaluation Committee, the Adjudication Committee and the Performance Monitoring Committee except that it will be required to comply with the technical advice of the relevant Committee on procedural and process issues relating to the procurement and disposal of assets;.

(b) obtain independent advice as may be necessary for the discharge of its functions;

(d) certify invoices for progress payment.

9. Procedure in case of disagreement

Where a procuring and disposing entity disagrees with the Evaluation Committee concerning any decision relating to the application or interpretation of any procurement or disposal method, process or practice, it shall state the reasons for disagreement and may—

(a) submit them to the Evaluation Committee for review; and

(b) if the matter is not satisfactorily resolved within a period of five days following the decision of the Evaluation Committee, request an independent review of the matter by the Adjudication Committee.

PART III
Public Procurement Rules and Processes (regs 10-29)

10. Preference and reservation

(1) Where an international agreement or preference policy is in place and contains provisions favourable to a citizen or local contractor, a local authority shall bring these provisions to the attention of the contractors and shall cause full advantage to be taken by such contractors of the opportunities contained in such provisions.

(2) Any agreements favourable to citizen or local contractors shall be brought to the attention of such contractors through a notice in a newspaper of wide circulation in Botswana, and information of the agreement shall be contained in the solicitation documents.

(3) A procuring and disposing entity may limit participation in a procurement activity to a category of contractors.

(4) When a procuring and disposing entity limits participation in a procurement proceeding to a category of contractors under subsection (3), it shall include—

(a) a statement to that effect in either the bidding documents or pre-qualification notice, or in both; and

(b) information on how the preference or reservation, or both, shall be applied.

(5) The Evaluation Committee shall allow certain price preferences which do not affect the tender price, but which are taken into account when calculating the comparative price.

(6) The following preferences shall be considered, based on the information provided by the tenderers—

(a) local procurement;

(b) preferences based on the use of special national standards; and

11. Records for inspection

The following records of a local authority shall be open for inspection by the Competent Authority during working hours—

(a) records of the procurement and disposal process;

(b) records of contracts management;

(c) all records of the procuring and disposing entity, the Evaluation Committee, the Adjudication Committee, the Accounting Officer, the Secretariat and the Performance Monitoring Committee; and

(d) any records of a local authority, inclusive of the district sub-divisions, which relate to procurement and disposal of assets, contract management, complaints investigations or, any other matter which relates to procurement and disposal of assets.

12. Contents of procurement records

All procurement and disposal records maintained by a local authority shall contain—

(a) a request to initiate procurement proceedings;

(b) a copy of the published advertisement or shortlist;

(d) the records of bid closing and bid openings;

(e) copies of all bids evaluated and any clarifications requested and responses received;

(f) the evaluation report and adjudication report;

(g) minutes of any meetings related to procurement, including pre-bid and negotiation meetings;

(h) the notice of best evaluated bidder;

(i) any letter of bid or acceptance to the provider;

(j) the contract document;

(k) any contract amendments;

(l) all correspondences between a local authority and bidders or potential bidders; and

(m) copies of all submissions to and all decisions of the procuring entity, Evaluation Committee and Adjudication Committee related to procurement, including, but not limited to—

(i) the choice of procurement method,

(ii) approval of pre-qualification and bidding documents,

(iii) approval of evaluation reports, adjudication and award decision,

(iv) approval of contract documents and contract amendments, and

(v) any decision to suspend or cancel procurement or disposal proceedings.

13. Contents of contract management records

All contract management records maintained by a procuring and disposing entity shall include—

(a) a signed contract document, including any signed contract amendments if any;

(b) any variations or change orders issued under the contract;

(c) all post-contract documentation relating to the fulfilment of contract obligations, in particular copies of bank guarantees or payment guarantees;

(d) minutes of any meetings related to the contract’s management, including contract progress or review meetings;

(e) all delivery documentation evidencing deliveries of supplies or completion certificates in relation to contracts for services of works under the contract;

(f) copies of all invoices for works, services or supplies including work papers verifying the accuracy of payments claimed and details of the actual payment authorised by the contract manager;

(g) copies of cumulative payment worksheets evidencing management of all payments made;

(h) copies of any claims made by the contract manager on behalf of a local authority in respect of any warranty, non-warranty, short supply, damage and other claims against the provider or upon the local authority;

(i) all correspondences between the local authority and the provider; and

(j) copies of all submissions to the Evaluation Committee and all decisions related to the contract management including, but not limited to, the approval of contract amendments by the Adjudication Committee.

14. Safe keeping of documents

(1) All securities, negotiable documents or other financial instruments received by a local authority shall be deposited by the responsible officer in a secure place for safe keeping as directed by the Accounting Officer.

(2) Copies of the original documents referred to in subregulation (1) shall be kept in the procurement disposal records, annotated with details of the location of the original document and the date of receipt of the original document.

(3) The following original documents shall be kept in a safe and secure place—

(a) original security;

(b) original performance security;

(d) a stage payment guarantee or security;

(e) a retained payment guarantee or security;

(f) any other payment guarantee or security;

(g) a bill of lading, airway bill or similar document;

(h) a Power of Attorney;

(i) original signed contracts;

(j) original signed contract amendments;

(k) original documents certifying the handover of title or risk in respect of works, other than minor works, completed or services provided; and

(l) any other documents deemed of intrinsic or inherent value.

(4) A Competent Authority may issue guidelines to provide for the requirements to be met by a local authority in order to safe keep such documents.

15. Communication

(1) English shall be the language of communication, unless otherwise specified.

(2) The medium of communication shall be specified in all bidding packages.

(3) The Competent Authority may issue guidelines regarding the use of electronic media where appropriate.

16. Process of procurement

The following stages of the procurement process shall be subject to the prior approval of the Adjudication Committee or holder of delegated authority—

(a) the choice of procurement method prior to commencement of the procurement process;

(b) pre-qualification documents prior to issue;

(d) evaluation reports prior to any post-qualification or negotiations;

(e) cancellation of any procurement process;

(f) contract documents prior to issue; and

(g) contract amendments prior to issue.

17. Cancellation of procurement process

(1) Where a procuring and disposing entity believes that a procurement or disposal process should be cancelled, the procuring and disposing entity shall prepare a recommendation for submission to the Adjudication Committee, which shall state—

(a) the procurement reference number and subject of procurement;

(b) detailed reasons why cancellation is recommended;

(d) whether a new procurement process is recommended for the same requirement; and

(e) any other relevant information.

(2) The reasons for cancellation may include, but are not limited to—

(a) lack of adequate funding;

(b) a significant change in the technical details of the requirement;

(d) the significant change of the circumstances giving rise to the need; or

(e) a lack of responsive bids.

(3) A procurement process shall not be cancelled before obtaining the approval of the Adjudication Committee.

(4) Where a procurement process is cancelled, a local authority shall still include it in the activity report submitted to the Competent Authority.

18. Contents of work plan

The combined work plan for a local authority shall include—

(a) a detailed breakdown of activities of works, services and supplies to be procured;

(b) a schedule of procurement requirements in order of priority;

(d) a plan of the likely method of procurement for each requirement and the likely time required for each stage in the procurement cycle; and

(e) details of measures to be taken to prevent recourse to the use of direct procurement.

19. Matters to be considered in planning

In planning its procurement activities, a local authority shall take into account—

(a) the aggregation of requirements to achieve lower unit costs;

(b) allocation of biddable lots ensuring that requirements are not split up without justified reason;

(d) joint procurement with other local authorities, where possible;

(e) pre-qualification to cover groups of contracts where similar works, services or supplies requiring a pre-qualification exercise during the financial year, or where it would facilitate shortlisting of bidders;

(f) scheduling of available resources to process the procurement requirements of the local authority; and

(g) the need of framework contracts where appropriate to the individual procurement requirements of a department.

20. Aggregation of requirements

Requirements shall be aggregated, but not excessively, for—

(a) all departments of a local authority; and

(b) a complete financial year or other appropriate period of time.

(2) The aggregation of requirements shall take into account—

(a) the market structure for the items required;

(b) items which are of a similar nature and likely to attract the same potential bidders;

(d) items which will be subjected to the same method of procurement and bidding conditions;

(e) items which will be ready for bidding at the same time;

(f) items which will be subjected to the same conditions of contract;

(g) potential savings, in time or transaction costs.

21. Splitting of requirements

(1) A local authority shall not split up a procurement requirement which can be procured as a single contract, with the intention of avoiding—

(a) a particular method of procurement; or

(b) the benefits of scale.

(2) Splitting of a procurement or disposal requirement which is similar or related shall only be permitted when it offers a clear and calculable economic or technical advantage.

22. Division into lots

(1) For purposes of this regulation a “lot” means a group of items, which will be evaluated and contracted as a group.

(2) A local authority may divide requirements allocated to a single procurement process into separate lots, where it is anticipated that the award of several separate contracts would result in the best overall value for the local authority.

(3) Where requirements are divided into lots, which may result in separate contracts, the choice of procurement method will be determined by the estimated value of each individual lot and not the total value of all lots included.

(4) Where a number of lots are to be procured under the same procurement process, the bidding documents shall clearly state—

(a) the number of lots included in the bidding documents;

(b) the nature and size of each lot;

(d) proportion of each lot for which a bidder may bid or whether bids must be for complete lots; and

(e) a way in which each portion of a lot or multiple lots will be evaluated where applicable.

23. Common procurement by procuring and disposing entity

(1) A procuring and disposing entity may seek to undertake common procurement where possible, for procurement requirements that are in common use by more than one procuring and disposing entity.

(2) A procuring and disposing entity may be guided by the list of common user items specified by the purchasing and supply department of a local authority, which shall not be considered exhaustive, and any requirement for works, services or supplies may be subject to common procurement.

24. Common procurement by local authorities

(1) Local authorities shall consult with each other in relation to common procurement and these consultations shall include—

(a) the availability of individual budgets;

(b) the payment for requirements delivered; and

(2) Local authorities may enter into contractual arrangements among themselves, to undertake procurement of works, services and supplies which are common to them, where joint action offers clear economic advantages or are intended to overcome inadequacy of capacity on the part of one or the other.

25. Approval arrangements under common procurement

(1) Where common procurement is agreed upon between local authorities they shall agree on arrangements for the approval of the procurement.

(2) Local authorities may agree on—

(a) cost sharing and payment arrangements to meet appropriate and acceptable payments; and

(b) reimbursement to any nominated local authority for the costs associated with procurement work undertaken on their behalf.

(3) The costs mentioned in subregulation (2) may include, but not be limited to, advertising costs, photocopying costs and the cost of the personnel involved in the procurement proceedings.

26. Initiation of procurement requirement

(1) Procurement requirements shall be documented using the standard FORM SF 001 set out in the Schedule and shall include—

(a) a clear indication of the works, services or supplies required;

(b) the estimated value of the works, services or supplies;

(d) the approval of the procurement requirement in accordance with subregulation (4).

(2) In estimating the value of the works, services or supplies required and confirming the availability of funds, a local authority shall ensure that the estimate is realistic and in particular ensure that—

(a) the estimate is based on up-to-date information;

(b) technical advice is sought, where required; and

(3) A specific reference number shall be allocated to each procurement requirement at the initiation stage, using the numbering system given in guidelines.

(4) Approval of a procurement requirement shall be evidenced by the signature of the Accounting Officer or his or her nominee on FORM SF 001 set out in the Schedule.

27. Availability of funds

(1) A local authority shall not initiate any procurement proceeding or activity for which funds are neither available nor adequate, except in respect of—

(a) a contract where the delivery and consequent payments to a provider are anticipated to be effected in the subsequent financial year or years;

(b) a framework contract, where funds will be committed at the time of issue of each specific call of order; and

(c) where the Secretary of the Finance Committee of a local authority has confirmed in writing that the required funding will be made available.

(2) Availability of funds shall be evidenced by a budget or supplementary funds for the current financial year or an allocation for subsequent years.

(3) The Accounting Officer shall make a certification of the availability of funds.

(4) The Accounting Officer shall, in respect of a procurement process where payments to a provider are anticipated to span more than one financial year, ensure that financial provisions are made in the budget estimates for the appropriate year to support the procurement during the subsequent years following the placement of the resulting contract.

(5) The Accounting Officer shall, in respect of framework contracts, ensure that sufficient funds have been budgeted in any financial year to cover the full cumulative costs of call of orders anticipated for each year of the framework contract.

28. Confirmation of funding

(1) The Secretary of the Finance Committee of a local authority may confirm future and required funding, and in such case, the Accounting Officer shall ensure that any instructions of the Finance Committee in relation to such funding are complied with to enable funds to be budgeted for and payments to be made.

(2) Confirmation of the availability of funds shall not require the commitment of the funds.

29. Subcontracting

Where subcontracting of a procurement activity is permitted, the solicitation or contract documents shall state—

(a) whether the bidder is permitted to subcontract any part of the proposed contract or the whole contract;

(b) that all subcontractors must be eligible in the same way as prime contractors;

(d) what approvals, if any, are required before entering into subcontracts that were not specified in the bid or before amending subcontract agreements or the proportion of works, services and supplies in terms of items, quantities and costs to be allocated to subcontractors;

(e) what approvals, if any, are required before changing any other conditions, agreements or details of the bid relating to subcontracting;

(f) that subcontracting shall in no event relieve the prime provider from any of its obligations, duties, responsibilities or liabilities under the contract;

(g) any obligations or conditions imposed on the provider, which the provider must also impose on subcontractors, such as an undertaking of confidentiality or a requirement to maintain adequate liability insurance;

(h) that the provider must not impose onerous obligations or conditions on subcontractors, such as payment clauses; and

(i) the way in which preference schemes will be applied to citizen or local subcontractors.

PART IV
Choice of Procurement Methods (regs 30-38)

30. Procurement methods

(1) The choice of procurement method shall be determined in accordance with these Regulations and the thresholds provided in the guidelines, and shall be on the basis of—

(a) the estimated value of the requirement; or

(b) the circumstances pertaining to the requirement.

(2) The estimated value of the requirement shall be the main criterion in determining the choice of procurement method.

(3) The circumstances pertaining to the requirements to be procured may be used as additional criteria in determining the choice of procurement method.

31. Open domestic bidding

(1) Except as otherwise provided for in these Regulations, a procuring and disposing entity shall use the open domestic bidding method.

(2) The open domestic bidding method shall be used to obtain maximum possible competition and value for money.

(3) The open domestic bidding method shall be open to all bidders and shall be by public advertisement of a bid notice in at least one newspaper of wide national circulation.

(4) A local authority may request permission from the Competent Authority to use a procurement method other than open domestic bidding where prevailing circumstances are not provided for under the provisions of these Regulations.

(5) Notwithstanding the provisions of subregulation (2), bidders may be selected through a pre-qualification process, following publication of a pre-qualification notice in at least one newspaper of wide national circulation.

(6) Bidding documents shall be sold to prospective bidders, at a fee which shall be set out in the guidelines.

(7) Nothing shall prevent a foreign bidder from participating in an open domestic bidding, unless otherwise specified in these Regulations.

(8) A foreign bidder who participates in an open domestic bidding shall be bound to the same extent as a citizen or local contractor.

(9) Submission of bids by the Evaluation Committee to the Adjudication Committee under this regulation shall be made using FORM SF 004 set out in the Schedule.

32. Open international bidding

(1) The open international bidding method may be used instead of open domestic bidding where competition would not be effective without foreign bidders or where foreign bids would increase value for money.

(2) The open international bidding method shall be open to all bidders following the advertisement of the bid notice in at least one newspaper of wide international circulation.

(3) Notwithstanding the provisions of subregulation (1), bidders may be selected through a pre-qualification process, following publication of a pre-qualification notice in at least one newspaper of wide international circulation.

(4) Bidding documents shall be sold to prospective bidders, at a fee which shall be set out in the guidelines.

(5) Nothing shall prevent a domestic bidder from participating in open international bidding, unless otherwise specified in these Regulations.

33. Restricted domestic bidding

(1) The restricted domestic bidding method shall be used to obtain competition and value for money to the extent possible, where the value or circumstances do not justify or permit the open domestic bidding method.

(2) The restricted domestic bidding method may be used where—

(a) the works, services or supplies are available only from a limited number of providers;

(b) there is insufficient time for use of an open bidding method in an emergency situation; and

(3) The invitation to bid under the restrictive domestic bidding method shall be addressed to a limited number of potential bidders on a shortlist without advertising the opportunity in a bid notice.

(4) The shortlist shall include sufficient bidders to ensure effective and real competition.

(5) A procuring and disposing entity shall use the following information in developing a shortlist for restrictive domestic bidding requirements—

(a) the Public Procurement and Asset Disposal Board’s register of contractors;

(b) a procuring and disposing entity’s own list of pre-qualified or registered contractors; and

(6) The following considerations shall be taken into account in developing a shortlist—

(a) a fair and equal opportunity shall be afforded to all providers;

(b) there shall be a rotation of different providers on successive shortlists;

(d) two or more bidders shall not have the same ownership or compromising business linkages.

(7) The shortlist referred to under this regulation shall be recorded, with reasons for the selection of each bidder, and submitted to the Adjudication Committee for approval.

(8) The approved shortlist shall be displayed on the notice board of the procuring and disposing entity not later than the date of issue of the invitation and shall remain on display until after the closing date for submission of bids.

34. Restricted international bidding

(1) The restricted international bidding method shall be used to obtain competition and value for money to the extent possible, where the value or circumstances do not justify or permit an open bidding method and a shortlist is developed, which shortlist includes foreign providers.

(2) The restricted international bidding method may be used where—

(a) the works, services or supplies are available only from a limited number of providers;

(b) there is insufficient time for use of an open bidding method in an emergency situation;

(d) the shortlist includes foreign providers.

35. Quotation proposal procurement

(1) The quotations and proposals procurement method may be used where—

(a) there is insufficient time for an open or restricted bidding method in an emergency situation;

(b) the estimated value of procurement does not exceed the threshold stated in the guidelines; and

(2) In the quotations and proposal procurement, written bidding documents shall be addressed to a limited number of potential bidders without publicly advertising the opportunity.

36. Micro procurement

(1) The micro procurement method shall be used for very low value procurement requirements where the value does not justify a competitive procedure.

(2) The micro procurement method may be used where the estimated value of the procurement does not exceed the threshold stated in the guidelines.

(3) Where the micro procurement method is used, the selection of a supplier shall be conducted on a sole supplier basis without competition and without the requirement of the following—

(a) bidding packages;

(b) publication of notice of the single provider;

(d) public bid opening;

(e) notice of best evaluated bidder;

(f) signed contract document; and

(g) notice of award of contract.

(4) The procuring and disposing entity shall obtain any supporting document such as the original copy of an invoice or receipt denoting the supplies procured and the price paid and annotated with the name of the official procuring the supplies.

(5) The procuring and disposing entity shall be responsible for ensuring that the value for money is obtained to the extent practical under this procurement method.

37. Direct procurement

(1) The direct procurement method may be used where—

(a) there is insufficient time for any other method in an emergency situation;

(b) the works, services or supplies are only available from a single contractor;

(c) an existing contract could be extended for additional works, services or supplies of a similar nature and no advantage could be obtained by further competition, provided the prices on the extended contract are reasonable;

(d) additional works, services or supplies are required to be compatible with existing works, services or supplies and it is advantageous or necessary to purchase the additional works, services or supplies from the original provider, provided the prices on the additional contract are reasonable;

(e) it is essential or preferable to purchase additional works, services or supplies from the original supplier to ensure continuity for downstream work, including continuity in technical approach, use of experience acquired or continued professional liability, if the prices on the additional contract are reasonable; or

(f) it is justified in the circumstances.

(2) When direct procurement is used under paragraphs (c), (d) or (e) of subregulation (1)—

(a) the value of the new works, services or supplies shall not exceed 15 per cent of the original or existing contract value; and

(b) the original or existing contract shall have been awarded through a competitive procurement process.

(4) Where direct procurement is used more than once in the circumstances set out in paragraphs (c), (d) or (e) of subregulation (1), the cumulative value of all new works, services or supplies shall not exceed 25 per cent of the value of the original or existing contract.

(5) A procuring and disposing entity shall use the appropriate documents, from the documentation issued by the Competent Authority, modified as necessary for the requirements of the procurement.

(6) A direct procurement contract shall be in writing in a contract form as provided in the documentation referred to under subregulation (5).

(7) A procuring and disposing entity shall not commence any procurement process under the direct procurement method prior to the approval by the Adjudication Committee.

38. Emergency situations

(1) An emergency situation shall constitute circumstances that may determine the choice of a procurement method, regardless of the estimated value of the requirement.

(2) An emergency situation shall be circumstances, which are urgent unforeseeable and not caused by negligence and shall include situations where—

(a) the country is either seriously threatened by or actually confronted with a disaster, catastrophe, war or an act of God;

(b) life or the quality of life or the environment may be seriously compromised;

(c) the conditions or quality of goods, equipment, building, capital works may seriously deteriorate unless action is urgently and necessarily taken to maintain them in their actual value or usefulness; or

(d) an investment project may be seriously delayed for want of minor items.

(3) Any recommendation to use an emergency situation as the criteria for determining the choice of procurement method shall include a comprehensive justification from its use and a statement of the reasons giving rise to the emergency situation.

(4) Where an emergency situation is used as a sole criteria for determining the choice of procurement proceeding, a local authority shall still obtain competition to the maximum extent practical in the circumstances.

(5) A local authority shall, in emergency situations, consider the use of any other competitive procurement methods prior to deciding on the use of the direct procurement method.

PART V
Bidding Process (regs 39-61)

39. Method for selection of bidders

The method for selection of bidders to be invited shall be—

(a) by publication of a bid notice;

(b) through a pre-qualification exercise;

(d) by a selection of a sole or single provider.

40. Bid notices

(1) Bid notices shall be in FORM SF 002 set out in the Schedule.

(2) Bid notices shall be published in at least one newspaper of wide circulation, and in the Gazette so as to reach all sufficient prospective bidders and to ensure effective competition.

(3) Bid notices shall also be displayed on the local authority’s—

(a) website; and

(b) notice board,

not later than the date of issue of the invitation to tender and shall remain on display until after the closing date for submission of bids.

41. Shortlist of bidders

(1) A shortlist shall include sufficient bidders to ensure effective and real competition.

(2) A local authority may use the register of contractors in developing a shortlist for procurement requirements.

(3) Where a shortlist is developed, the following considerations shall be taken into account—

(a) a fair and equal opportunity shall be afforded to all bidders and there shall be no barrier created to deter competition; and

(b) there shall be a rotation of different bidders on a successive shortlist.

(4) The proposed shortlist shall be recorded, with reasons for the selection of each bidder, and submitted to the Adjudication Committee for approval using FORM SF 003 set out in the Schedule prior to the issue of the bidding packages.

(5) The approved shortlist shall be displayed on the local authority’s website and notice board, not later than the date of issue of the invitation to tender and shall remain on display until after the closing date for submission of bids.

42. Selection of single or sole bidder

(1) For the purposes of this regulation, a single source method is where one bidder is selected from among a number who are able to meet the requirements of the procurement, such as in an emergency.

(2) For the purposes of this regulation, a sole source is where only one bidder exists who is able to meet the requirements of the procurement, due to patents or a monopoly situation.

(3) A local authority shall use the register of contractors in order to identify a single or sole source bidder.

(4) Where a single source is being selected, the following shall apply—

(a) a local authority shall ensure that the selected bidder is eligible and qualified prior to finalising the recommendation of the source; and

(b) where possible the bidder shall not be informed that the proposed procurement is based on single sourcing.

(5) Where only a sole source exists, a local authority shall verify that only a sole source exists.

(6) The single or sole source method shall be recorded, with reasons for the selection of a single or sole source or reasons why there is only a single or sole source, and submitted to the Adjudication Committee for approval using FORM SF 004 set out in the Schedule prior to the issue of the solicitation document.

(7) The approved single or sole source bidder shall be displayed on the local authority’s website and notice board, not later than the date of issue of the invitation to tender and shall remain on display until after the closing date for submission of bids.

43. Pre-bid meetings

(1) A local authority may hold a pre-bid meeting to allow potential bidders to—

(a) seek clarification; or

(b) have access to a project site where applicable.

(2) Arrangements for pre-bid meetings shall be included in the bidding packages.

(3) A potential bidder shall be given not less than 14 days notice of the pre-bid meeting, and where appropriate, such notice period shall be extended to accommodate international methods of procurement.

(4) The procuring and disposing entity shall record the minutes of all pre-bid meetings and copies of the minutes shall be provided to all bidders who purchased or were issued with the bidding packages.

(5) Pre-bid meetings shall be managed by the procuring and disposing entity.

44. Bidding packages

(1) Standard bidding packages, and other documents issued by the Competent Authority, may be customised for use by a procuring and disposing entity by the entry of the contract details of the procuring and disposing entity, such as, name and address, the addition of a logo or any other form of identification of the procuring or disposing entity.

(2) Bidding packages shall have a statement of requirements that defines the requirements precisely and in a manner that leaves no doubt or assumption by a bidder of the requirements of the procuring and disposing entity and that determines how closely and effectively a bidder can meet these requirements.

(3) The description in the statement of requirements shall be prepared with a view to ensuring that the works, services or supplies are fit for the purpose for which they are being purchased and are of appropriate quality ensuring value for money.

(4) Bidding packages shall have the most appropriate evaluation methodology and evaluation criteria to compare and evaluate the bids received.

(5) Bidding packages shall clearly state the type of contract to be entered into and shall contain the form of contract to be used resulting from the procurement proceedings including all the proposed contract forms and conditions applicable.

(6) Bidding packages may be sold to bidders in order to recover costs but the price shall be calculated to cover only those costs related to printing, copying and distribution.

(7) Bidding packages shall state that no change in the substance of bids including changes in price shall be sought, offered or permitted after the date and time of closing the bid.

(8) The statement of requirements in the Bidding packages shall not be issued with reference to a particular trademark, brand name, patent, design, type, specific origin, producer, manufacturer, catalogue or numbered item.

(9) Notwithstanding subregulation (8) where a standardisation policy has been approved, the corresponding trademark, brand name, patent, design, type, specific origin, manufacturer, producer, catalogue or numbered item may be used in the statement of requirements.

(10) Where there is no other sufficiently precise or intelligible way of characterising a requirement except by the use of a form of identification referred to in subregulation (8), the description shall be used, followed by the words “or equivalent”, and shall only serve as a benchmark during the evaluation process.

45. Clarification and amendment of bidding packages

(1) The bidding packages shall state that bidders may seek clarification on the bidding packages and shall state the final date, after which such clarification may not be sought.

(2) Where a request for clarification is received, the procuring entity shall promptly provide a clarification in writing, and shall copy the response to all bidders who obtained the solicitation documents, including a description of the inquiry, but without identifying the source.

(3) The procuring and disposing entity may at any time prior to the deadline for submission of bids, either at its own initiative or in response to a request for clarification from a bidder, amend the solicitation documents by issuing an addendum.

(4) A local authority shall, where less than one half of the bidding period remains, extend the deadline for the submission of bids by a period resulting in one half of the remaining period to give bidders reasonable time in which to take into account an addendum made under subregulation (3).

(5) The addendum, including any extension to the bidding period, shall be issued in writing and the same information shall be provided to all bidders.

(6) All addenda to bidding packages shall be approved by the Adjudication Committee prior to issue to bidders and shall be numbered sequentially.

(7) All clarifications and amendments to the solicitation documents shall be binding on bidders.

46. Bidding period

(1) The bidding period shall start on the date the solicitation documents are issued to bidders and finish on the date for submission of bids by bidders.

(2) The bidding period shall be determined taking into consideration the following factors—

(a) the time required for the preparation of bids, taking into account the level of detail required in and the complexity of bids;

(b) the need for bidders to submit authenticated legal documents or similar as part of their bids and the time required to obtain such documents;

(c) the location of shortlisted or potential bidders and the time required for the delivery and submission of bids to the procuring entity;

(d) the anticipated duration of the procurement process; and

(e) the minimum bidding period.

47. Minimum bidding period

(1) Unless otherwise determined by the Competent Authority, the minimum bidding period specified in the solicitation documents shall be—

(a) 20 days for open domestic bidding;

(b) 30 days for open international bidding;

(d) 20 days for restricted international bidding; or

(e) five days for quotations and proposals procurement.

(2) Where the publication of a bid notice is delayed, the deadline for submission of bids shall be extended by an appropriate period to ensure that both the minimum advertising and minimum bidding periods are complied with.

48. Format of bids

The bidding packages shall contain instructions to bidders on—

(a) the format and documentation required in bids;

(b) the procedure for signing and authorising bids; and

(i) one original bid marked “ORIGINAL”; and

(ii) a specified number of copies, each marked “COPY”.

49. Bid validity

(1) Bidding packages shall state the period which bids are to remain valid for.

(2) The bid validity period shall be calculated from the closing date of the bid submission and shall remain in force until the close of business on the last day of the validity period.

(3) When determining the duration of a bid validity period, sufficient time shall be allowed to enable the local authority to—

(a) undertake evaluation, post-qualification and negotiations;

(b) conduct adjudication and make an award of contract;

(d) prepare a letter of acceptance or contract document and obtain all necessary approval prior to issue of the letter or document within the validity period of the bid.

(4) An extension to the initial period of a bid validity shall not normally be requested from bidders, but where an extension becomes necessary, the local authority shall make a request in writing to all bidders to extend the validity for a minimum period to complete the process outlined in subregulation (3), before the expiry of the validity of a bid.

(5) In extending the validity of their bids, bidders shall not be permitted to change the price or any other details of their bid.

(6) A bidder may refuse to extend the validity of the bid, without forfeiting the bid security

50. Bid security

(1) Bidding packages shall state any requirement for a bid security, and the amount of a bid security shall be specified in the guidelines.

(2) A bid security may be requested to deter irresponsible bids and encourage bidders to fulfil the conditions of their bids.

(3) A local authority shall require a bid security to be—

(a) in a form provided by the Competent Authority and included in the bidding packages;

(b) in a standard form and from an institution that is wholly acceptable to the Bank of Botswana; and

(4) A bid security shall be released promptly by a local authority to an unsuccessful bidder upon expiry of the term of the security or upon the formation of a contract with the successful bidder.

(5) The bid security of the successful bidder shall not be returned to the bidder until a corresponding performance security is received, if so required by the contract.

(6) The proposed release of a bid security shall be communicated to the bidder and returned in accordance with the bidder’s instructions.

(7) The conditions for forfeiture of a bid security shall be specified in the bidding packages and shall include the following—

(a) where a bidder withdraws its bid during the bid validity period; or

(b) where the successful bidder fails to—

(i) accept the correction of its bid price;

(ii) sign the contract within the specified time; or

(iii) furnish the required performance security within the prescribed period.

51. Bid currency

Bidding packages shall state any limitations on the currency or currencies of bidding and payment that may apply to a procurement proceeding or resulting contract.

52. Bid submission methods

(1) All bidding packages shall contain instructions on the method of bid submission, which shall either be the—

(a) one stage-single envelop method, in which a bid is submitted in one sealed envelope, which is opened on the specified date and time in a single bid opening;

(b) one stage-two envelope method, in which a bid is submitted in an outer sealed envelope, containing two separately sealed and labelled technical and financial bids, which are opened on different dates in separate bid openings;

(i) during the first stage, a bid is submitted in an outer sealed envelope, containing two separately sealed and labelled technical and financial bids, of which only the technical bid is initially opened and evaluated; and

(ii) during the second stage, a revised technical bid and a supplementary financial bid are submitted, which are opened and evaluated together with the original financial bid; or

(d) two stage method, in which—

(i) during the first stage, a technical bid only is submitted, opened and evaluated; and

(ii) during the second stage, a revised technical bid and a financial bid are submitted, opened and evaluated together.

(2) Where the two stage methods in subregulations (1)(c) and (1)(d) are used, all bidders shall be invited to submit bids during the second stage, unless they have been declared non-compliant or non-responsive.

(3) A bid submission method shall be selected in accordance with the rules set for each evaluation methodology and with guidance from the following—

(a) the one stage-single envelope method shall be used where all stages of the evaluation are to be conducted together and a combined technical and financial evaluation report produced;

(b) the one stage-two envelope method may be used where the detailed technical and commercial evaluation is to be conducted without reference to the financial information;

(c) the two stage-two envelope method may be used where alternative technical bids are possible and the local authority needs to evaluate the initial technical bids in order to determine a single technical standard with which all bidders are invited to conform by submitting revised technical bids and supplementary financial bids; and

(d) the two stage method may be used for large and complex contracts, where technically unequal bids are likely and more than one equally acceptable technical solution is available to the local authority, which needs to ensure that all technical bids conform to the same technical standard before financial bids are prepared.

(4) A bidding package shall state that a bid shall be submitted in plain outer envelopes, securely sealed in such a manner that opening and resealing cannot be achieved undetected.

(5) A bidder shall be at liberty to choose his or her preferred method of envelope sealing, but a local authority may, at the opening, reject any envelope that is unsealed.

(6) A bidding document shall contain instructions on the details of labelling and references to be detailed on each envelope which shall include the following labels—

(a) the procurement reference number;

(b) the name of the bidder;

(d) “WITHDRAWAL” or “REPLACEMENT” where bids are being withdrawn or replaced; and

(e) “NOT TO BE OPENED BEFORE THE DATE AND TIME OF THE BID OPENING”.

53. Withdrawal, etc., of bids

(1) A solicitation document shall contain instructions that a bidder may, at any time before the deadline for submission of bids—

(a) withdraw his or her bid; or

(b) modify his or her bid by withdrawal of the original bid and submission of a replacement bid.

(2) The solicitation document shall specify the procedure for withdrawal, replacement or modification of a bid and shall state that the deadline for withdrawal, replacement or modification shall be the same as the deadline for submission of the bid.

(3) Withdrawal of a bid by a bidder shall be by submission of a letter notifying the local authority of the withdrawal and it shall be authorised and submitted in the same way as the original bid.

(4) The envelope containing the withdrawal letter shall be clearly marked “WITHDRAWAL”.

(5) A bidder who withdraws his or her bid may submit a new bid in accordance with the bid submission instructions in the bidding packages and the envelope containing the new bid shall be clearly marked “REPLACEMENT”.

(6) A bid may only be modified by withdrawal of the original bid and submission of a replacement bid in accordance with subregulation (3), (4) and (5) and any modification submitted in any other way shall not be taken into account in the evaluation of a bid.

54. Receipt of bids by local authority

(1) The method for receipt of bids and closing of bids shall be by—

(a) receipt of bids in person and issue of acknowledgement by the Secretariat; and

(b) use of a bid box.

(2) Where a bid is delivered by registered mail or courier, a local authority shall not be held liable for risk of loss or delay in delivery.

(3) Submission of electronic bids shall not be permitted unless specifically authorised by the Competent Authority in the guidelines.

55. Receipt of bids in person and bid closing

(1) A local authority shall ensure that officials are available at the location for submission, for a reasonable period of time before the deadline to receive bids and issue receipts.

(2) A local authority shall issue signed receipts for all bids received, stating the date and time received.

(3) A local authority shall maintain a record of all bids received using FORM SF 005 set out in the Schedule which shall indicate the—

(a) name of the person delivering the bid written in large block letters for each bidder;

(b) date and time when each bid was received;

(d) signature of both deliverer and receiver of each bid.

(4) Bidding shall be closed at the precise time and date of the closing deadline and any bid that arrives at the location of submission after the deadline for submission of bids shall not be accepted.

(5) A bid received after the deadline for submission of bids shall be declared late, labelled as such, and returned unopened to the bidder and any late bid which is not labelled with bidder’s name shall be left unopened and destroyed.

(6) The bid closing process shall be managed by the head of the purchasing and supply department and shall be witnessed by at least three officers appointed by the accounting officer who shall sign the completed FORM SF 005 set out in the Schedule to confirm that bidding was closed at the precise time and date of the deadline.

(7) Immediately after the bid closing process, the bids received shall be moved to the location of the bid opening and, where the bid opening is not immediately after the bid closing, the bids received shall be moved to a secure location, specified by the Accounting Officer.

56. Receipt of bids by bid box and bid closing

(1) A local authority shall ensure that bidders have access to the bid box at all times during working hours until the closing deadline.

(2) Where a bid is too large to be placed in the bid box, a local authority shall—

(a) issue a receipt for the bid;

(b) ensure that the bid is kept securely until the deadline for bid submission; and

(c) ensure that the bid is taken to the location for bid opening with the sealed bid box and included in the bid opening procedure.

(3) Where a local authority considers it appropriate, it may require a bidder to register his or her bid and obtain a receipt prior to placing the bid in the bid box.

(4) Bidding shall be closed at the precise time and date of the deadline by sealing the bid box and any bid that arrives at the location of submission after the deadline for submission has passed shall not be placed in the bid box or accepted in any other way.

(5) A bid received after the deadline for submission of bids shall be declared late, and shall be returned unopened to the bidder and any late bid which is not labelled with the bidder’s name shall be kept unopened and destroyed.

(6) The bid closing process shall be managed by the head of the purchasing and supply department who shall sign the completed FORM SF 005 set out in the Schedule to confirm that the bid box was sealed at the precise time and date of the deadline.

(7) Immediately after the bid closing process, the sealed bid box shall be moved to the location of the bid opening and where the bid opening is not to take place immediately after the bid closing, the sealed bid box shall be moved to a secure location, specified by the Accounting Officer.

(8) The bid box shall not be opened until the time of public opening.

57. Bid opening

(1) All bidding processes shall include a public bid opening and the bidding packages shall contain instructions to bidders regarding the—

(a) date and time of the bid opening;

(b) precise location of the bid opening; and

(2) Where the information in subregulation (1) is not available at the time of issue of the bidding packages, such information shall be communicated to all bidders who purchased or were issued with the bidding packages, before the deadline for bid submission.

(3) The information to be read out at the bid opening shall be in accordance with the bidding packages and shall include—

(a) the name of the bidder; and

(b) the presence or absence of a bid security and the form or amount of any bid security, where such bid security was requested in the bidding packages.

(4) In addition to the information in subregulation (3), the information to be read out at the bid opening may include—

(a) the total price of the bid, including the currency and amount, and the proposed execution time;

(b) the technical score obtained by the bid under the one stage-two envelope, the two stage-two envelope or the two stage bid submission method, where applicable; and

58. Procedure for bid opening

(1) An envelope marked “WITHDRAWAL” shall be opened first and read out and the envelope containing the corresponding bid shall be located and returned to the bidder unopened.

(2) A bid withdrawal shall only be accepted if the bid withdrawal notice is authorised in accordance with the solicitation document and read out at the bid opening.

(3) All other envelopes, including those marked “REPLACEMENT” shall be opened one at a time and the relevant details read out in accordance with the bidding packages.

(4) A replacement bid shall be recorded as such in the records of bid opening.

(5) All bids opened shall be stamped on key pages with the local authority’s stamp and signed or initialed by the chairperson of the opening, who shall be the head of the purchasing and supply department and at least three officers appointed by the Accounting Officer.

(6) The chairperson shall determine the key pages to be stamped and initialed, but these shall always include the typed pages of the bid that are unique to the bid, including the bid form or bid submission sheet and all pages containing financial information.

(7) A printed or illustrative page contained in a bid shall not be regarded as a key page unless the chairperson of the opening states otherwise.

(8) A bid shall not be accepted, rejected or evaluated in any way at the public bid opening, except if it is a late bid.

(9) A local authority shall note any discrepancies or missing documents in the record of bid opening, but shall not otherwise comment on such discrepancies or missing documents.

(10) A public bid opening shall be conducted in full view of bidders’ representatives, but the representatives shall not be permitted to participate in the opening process.

(11) A local authority shall permit a bidder’s representative to approach the opening table only to confirm that their bid is intact and sealed, and no additions, deletions or modifications to the exterior or the contents of the sealed bid shall be permitted.

(12) A bidder’s representative shall be permitted to ask questions after all bids have been opened, but a local authority shall not enter into discussion on the specific details of any bid.

(13) The opened bids shall be taken immediately to a secure location, determined by the Accounting Officer, where they shall be kept until the evaluation begins.

59. Record of bid opening

(1) All attendees at the public bid opening shall be required to sign FORM SF 005 set out in the Schedule to indicate their attendance.

(2) After all bids have been opened, read out and recorded, the record of the opening shall be signed by the head of the purchasing and supply department and the Chairperson of the Evaluation Committee.

(3) A copy of the record shall be made available to a bidder’s representatives upon request, and on payment of a prescribed fee.

(4) A record of the bid opening shall be posted on the local authority’s notice board within one working day of the opening and shall be displayed for a minimum of four weeks.

60. Single or limited bid responses

(1) Where only a single bid or a limited number of bids have been received in response to a bidding packages, under a competitive procurement method, the evaluation may proceed for the bid or bids received, provided that the Evaluation Committee agrees that—

(a) the minimum bidding period was sufficient for the procurement method and requirement;

(b) the terms and conditions of the bidding packages were reasonable and not so excessive as to deter competition;

(d) the shortlist, if any, included a sufficient number of bidders;

(e) all shortlisted bidders or all bidders responding to the bid notice were issued with the bidding packages and there were no delays in issuing the documents;

(f) any amendments to the bidding packages allowed sufficient time for a bidder to take the amendment into account in preparing his or her bid;

(g) that there were no other extraneous events or circumstances that may have affected the ability of a bidder to respond;

(h) there is no suspicion of collusion between potential bidders; and

(i) the original choice of procurement method was appropriate for the market and an adequate number of potential bidders exist to make competition possible.

(2) Where the Evaluation Committee proceeds with the evaluation of a single or limited number of bids, the evaluation report shall—

(a) include the discussions and findings of the Evaluation Committee in relation to subregulation (1); and

(b) indicate whether the best evaluated bid offers value for money.

(3) Where only a single bid was received, the Evaluation Committee may recommend negotiations on any element of the bid where necessary.

61. Complaints on bidding process

(1) Where a local authority suspects collusion between bidders, any procuring and disposing entity may request the Accounting Officer to undertake an investigation.

(2) Where the Performance Monitoring Committee, a contractor or a public interest group suspects mismanagement or malpractice in the procurement cycle within a local authority, they shall report it to the Accounting Officer who shall conduct a review.

PART VI
Evaluation Process (regs 62-81)

62. Evaluation

(1) An evaluation shall be conducted by an evaluation committee, which shall report to the Adjudication Committee.

(2) Evaluation shall be conducted in accordance with the methodology, criteria and weights stated in the solicitation document and a written evaluation report shall be produced.

(3) Where a member of a committee disagrees on the result of an evaluation, the findings and recommendations of the majority shall be stated in the evaluation report.

(4) The evaluation report shall contain a statement of any disagreement, including the reasons, the discussions held on the issue and names of those holding the alternative views.

(5) The evaluation report shall be signed by all members of the Evaluation Committee in attendance.

(6) The evaluation report shall be in a format specified by the Competent Authority.

63. Evaluation criteria

(1) The evaluation criteria to be used shall be stated in the bidding packages and the evaluation shall be conducted in accordance with the criteria and such procedure as is set out in these Regulations, as may be relevant for the particular evaluation.

(2) The evaluation criteria shall be used to assess compliance with the statement of requirements, ability to perform the proposed contract or ability to meet the objectives of the procurement.

(3) Evaluation criteria which is not related to the statement of requirements, proposed contract or objectives of the procurement shall not be included in the bidding packages.

(4) Evaluation criteria shall not be drafted in a way which restricts competition, unless such criteria is required to meet the objectives of the procurement.

(5) Where the criteria is given scores or weighted, the maximum score or weight allocated shall be directly related to the importance of the criteria to the procurement.

(6) The weights stated in the bidding packages shall not be altered in the evaluation process.

64. Compliance and responsiveness to bids

(1) An Evaluation Committee’s determination of a bid’s compliance and responsiveness with the solicitation document shall be based on the contents of the bid.

(2) A substantially compliant and responsive bid shall conform to all instructions, requirements, terms and conditions of the solicitation document without a material deviation, reservation or omission.

(3) An Evaluation Committee shall reject a bid which is not substantially compliant and responsive to the solicitation document, and the bidder shall not subsequently correct the material deviation or reservation.

(4) Where a bid is substantially compliant and responsive to the solicitation document, an Evaluation Committee may waive, clarify or correct any non-conformity or omission in the bid that does not constitute a material deviation.

(5) Where a bid is to be evaluated on a pass or fail basis, any bid which is determined to be substantially compliant and responsive to the solicitation document shall pass.

65. Change to bid details

(1) A procuring and disposing entity shall not permit any alteration to the substance of a bid or the bid price, after the date and time of bid closing.

(2) Notwithstanding subregulation (1), the Evaluation Committee may request clarification from bidders which relate to—

(a) non-conformity or omissions which are not material; or

(b) the correction of arithmetic errors.

(3) A clarification shall not seek, and the bidder may not be permitted to—

(a) alter or amend the bid price, except to correct errors;

(b) change the substance and the terms of the bid; or

(4) A request for a clarification or correction of an arithmetic error shall be in writing and addressed to the bidder with whom the clarification is sought.

(5) The procuring and disposing entity shall send a copy of the clarification to all the bidders for information purposes only.

(6) A bidder shall be instructed to respond to a clarification letter within a specified time, and where the bidder fails to respond within the stipulated time, such bid shall be rejected.

(7) A request for clarification shall not be permitted to become a negotiation, but shall be used in the evaluation process only to clarify details that a bidder included in his or her original bid.

(8) Where a correction is made to the non-conformity or omission, the non-conformity or omission shall be quantified in monetary terms and the bid price shall be adjusted for evaluation purposes only, to reflect the price of the non-conforming or omitted items or components.

66. Material and non-material deviation

(1) A material deviation, reservation, or omission is one that—

(a) affects in a substantial way, the scope, quality, or performance of the works, services or supplies specified in the bidding packages;

(b) would limit in a substantial way, a local authority’s rights or the bidder’s obligations under any resulting contract; and

(c) if corrected would unfairly affect the competitive position of other bidders presenting substantially responsive and compliant bids and shall result in the rejection of the bid.

(2) A non-material deviation, reservation or omission is one that—

(a) affects the scope, quality, or performance of the works, services or supplies specified in the bidding packages in a minor way, and is acceptable to a local authority;

(b) would limit the local authority’s rights or the bidder’s obligations under any resulting contract in a minor way, and is acceptable to a local authority; and

(c) would not unfairly affect the competitive position of other bidders presenting substantially responsive and compliant bids if corrected and may be waived, clarified by the bidder or corrected by a local authority.

(3) The classification of a deviation, reservation or omission as material or non-material shall be determined by the objectives and requirements of the individual procurement requirement, as stated in the bidding packages.

(4) In classifying a deviation, reservation or omission as material or non material, the local authority shall consider whether the impact on key factors, such as cost, risk, time and quality are major or minor and the following shall apply—

(a) a material deviation, reservation or omission may include—

(i) an unacceptable time schedule, where it is stated in the bidding packages that time is essential;

(ii) an unacceptable alternative technical detail, such as design, materials, workmanship, specifications, standards or methodologies; and

(iii) an unacceptable counter proposal with respect to key contract terms and conditions, such as payment terms, price adjustment, liquidated damages, subcontracting or warranty;

(b) a non material deviation, reservation or omission may include—

(i) minor differences in time schedules, where time is not essential;

(ii) an omission of a minor item;

(iii) an arithmetic error;

(iv) alternative technical details, such as design, materials, workmanship, specifications, standards or methodologies, which are substantially responsive to the statement of requirements and acceptable to the local authority; and

(v) a minor amendment to the contract terms and conditions, which is acceptable to a local authority.

(5) The classification of a deviation, reservation and omission as material or non-material shall be consistently applied to all bidders in relation to each bid.

67. Stages of evaluation

All evaluations shall be conducted in three sequential stages—

(a) a preliminary examination to determine the eligibility of bidders and the administrative compliance of bids received;

(b) a detailed evaluation to determine the commercial and technical responsiveness of the eligible and compliant bids; and

(c) a financial comparison to compare costs of the eligible, compliant, responsive bids received and determine the best evaluated bid.

68. Preliminary examination

(1) A preliminary examination shall be conducted to determine—

(a) whether a bidder is eligible; and

(b) the administrative compliance of a bid to the basic instructions and requirements of the bidding packages.

(2) An Evaluation Committee shall consider the following to determine whether a bidder is eligible—

(a) the legal capacity of the bidder to enter into a contract;

(b) that the bidder is not—

(i) insolvent,

(ii) in receivership,

(iii) bankrupt, or

(iv) being wound-up;

(d) that the bidder’s business activities have not been suspended;

(e) the certified valid copy of the bidder’s—

(i) Trading Licence or its equivalent,

(ii) Certificate of incorporation or its equivalent,

(iii) Tax Clearance Certificate for Tender Purposes or its equivalent, and

(f) a signed statement that the bidder does not have a conflict of interest in relation to the subject of the procurement.

(3) Administrative compliance shall be determined by measuring whether a bidder has conformed satisfactorily to the basic or specific instructions and requirements detailed in the bidding packages and may include but not limited to—

(a) submission of bid security, if required, in the correct form and amount;

(b) submission of the correct number of copies of the bid;

(d) signature and authorisation of bids in accordance with the instructions in the bidding packages;

(e) signature of curriculum vitae, if required;

(f) correct bid validity; and

(g) submission of any additional documentation or samples required.

(4) Eligibility and administrative compliance shall be determined on a “PASS” or “FAIL”, “YES” or “NO” basis and a bid which is not eligible or substantially compliant shall be rejected.

(5) Only bids that pass the preliminary examination shall be considered in the next stage.

69. Detailed evaluation

(1) A detailed evaluation shall be conducted to assess—

(a) the commercial responsiveness of a bid to the terms and conditions of the bidding packages; and

(b) the technical responsiveness of a bid to the statement of requirements and the relative quality of bids received.

(2) A detailed evaluation shall only be conducted on bids that are determined to be eligible and compliant during the preliminary examination.

(3) A detailed evaluation shall compare the details of the bids received with the terms, conditions and criteria stated in the bidding packages.

(4) A detailed evaluation shall not be based on any terms, conditions or criteria that were not included in the bidding packages.

(5) The method of detailed evaluation shall be in accordance with the methodology selected and bidding packages and may use—

(a) an assessment of whether the bid conforms to all the terms and conditions of the bidding packages, including the statement of requirements, without material deviation or reservation;

(b) a pass or fail system against a minimum technical standard detailed in the statement of requirements to determine whether bids are substantially responsive to the minimum standard required;

(c) a merit point system, with a variable number of points awarded to each bid for set criteria out of a maximum number of points stated in the statement of requirements to obtain a total score indicating the relative quality of each bid; or

(d) a combination of all the above.

(6) A bid which is not substantially responsive to the minimum standard or does not reach any minimum score required shall be rejected and not evaluated further.

(7) A bid which reaches the minimum standard or score required may also be rejected, if so indicated in the evaluation methodology in the bidding packages.

(8) Unless otherwise indicated in the bidding packages, an alternative bid shall not be considered.

70. Financial comparison

(1) A financial comparison shall be conducted to examine and compare financial bids and determine the best evaluated bid.

(2) A financial comparison shall only be conducted on bids that are—

(a) eligible and administratively compliant; and

(b) substantially, commercially and technically responsive or meet the required minimum technical standard or score.

(3) A financial comparison shall—

(a) determine the bid price;

(b) correct any arithmetic error in the bid;

(d) determine whether the financial bid is complete, costing any missing item and adding it to the original bid price in accordance with subregulation (4);

(e) make adjustment for any non material, non-conformity or omission;

(f) convert all bids to a single evaluation currency for purposes of comparison if required;

(g) apply any margin of preference in accordance with the procedure specified in the bidding packages;

(h) determine the total evaluated price of each bid;

(i) award a financial score or rank bids, in accordance with the evaluation methodology selected; and

(j) determine which is the best evaluated bid in accordance with the methodology and criteria in the bidding packages.

(4) Where a conditional discount has been offered, it shall be incorporated in a further financial comparison prior to determining the best evaluated bid or bids.

(5) A financial bid shall be determined to be complete if prices have been included for all items required and included in the corresponding technical bid and, unless otherwise stated in the bidding packages, any missing items shall be costed, using the highest price from the other bids, and added to the original bid price.

(6) The bidding packages shall state the evaluation currency and the date and source of the exchange rate to be used for conversion to a single currency.

71. Evaluation methodologies

(1) The Evaluation Committee shall use one of the following evaluation methodologies—

(a) Quality and Cost Based Selection (QCBS);

(b) Quality Based Selection (QBS);

(d) Least Cost Selection (LCS); or

(e) Technical Compliance Selection (TCS).

(2) A procuring and disposing entity shall choose an evaluation methodology that best suits the procurement requirement.

(3) Notwithstanding subregulation (2), evaluation under direct procurement shall always be by the technical compliance selection methodology.

(4) A procuring and disposing entity shall seek the consent of the Competent Authority where it wants to use another evaluation methodology not provided for in subregulation (1).

72. Quality and cost based selection

(1) A quality and cost based selection method is the evaluation method which takes into account both the quality and the cost of a bid in a process where a technical bid is first evaluated without access to the financial bid.

(2) A bid submitted under this methodology shall be submitted under the—

(a) one stage-two envelope submission method;

(b) two stage method; or

(3) The bidding packages shall state—

(a) the technical evaluation criteria and their maximum scores;

(b) a minimum technical qualifying mark, below which bids shall be rejected; and

(4) The relative weights allocated to the technical and financial components of the evaluation shall be chosen taking into account the nature of the assignment, the complexity of the assignment and the relative importance of the technical aspect of the bids.

(5) The bid obtaining the highest total score shall be the best evaluated bid and shall be recommended for award of contract.

73. Quality based selection

(1) A quality based selection method is the evaluation method that takes into account quality as the primary factor in a process under which technical bids are evaluated without access to financials bid and a financial comparison undertaken only for the best technical bid.

(2) Bidders may be present at the opening of both the technical and financial bids.

(3) A bid submitted under this methodology shall be submitted under the—

(a) the one stage-two envelope submission method;

(b) the two stage method; or

(4) The bidding packages shall state the technical evaluation criteria and their maximum scores.

(5) The highest technical score shall be the best evaluated bid and the bid shall be recommended for award of contract, subject to negotiation of the financial bid.

(6) The evaluation of bids using quality based selection evaluation shall be recorded using FORM SF 006 set out in the Schedule.

74. Fixed budget selection

(1) A fixed budget selection method is the evaluation method that recommends the bidder with the best technical bid which is within the budget.

(2) A bid submitted under this method shall be submitted under—

(a) the one stage-two envelope submission method;

(b) the two stage method; or

(3) The bidding packages shall state—

(a) the technical evaluation criteria and their maximum scores;

(b) a minimum qualifying mark, below which bids shall be rejected; and

(4) The statement of requirements shall contain all the necessary details to portray the sufficiency of the budget for the performance, by a bidder, of the expected tasks as shall be contained in the contract.

(5) The highest ranked technical bid that is within the budget shall be the best evaluated bid and shall be recommended for award of contract.

75. Least cost selection

(1) A least cost selection method is the evaluation method that recommends the lowest priced bid which meets all the requirements of the procuring and disposing entity, both commercial and technical.

(2) A bid submitted under this method shall be submitted under—

(a) the one stage-two envelope submission method;

(b) the two stage method; or

(3) The bidding packages shall state—

(a) the technical evaluation criteria and their maximum scores; and

(b) a minimum qualifying mark, below which bids shall be rejected.

(4) The lowest priced bid which is eligible, compliant, responsive and meets the minimum qualifying technical mark shall be the best evaluated bid and shall be recommended for award of contract.

76. Technical compliance selection

(1) A technical compliance selection method is the evaluation method that recommends the lowest priced bid, which is substantially responsive to the commercial and technical requirements of the procuring and disposing entity.

(2) A bid submitted under this method shall be submitted under—

(a) the one stage-two envelope submission method;

(b) the two stage method; or

(3) The bidding packages shall state the minimum technical requirements.

(4) The lowest priced bid which is qualified, compliant and responsive shall be the best evaluated bid and shall be recommended for award of contract.

77. Evaluation report

(1) An evaluation report shall be prepared for each bid evaluation and submitted to the Adjudication Committee for its consideration.

(2) The evaluation report shall be signed by all members of the Evaluation Committee and shall be in FORM SF 007 set out in the Schedule.

(3) Where bids are submitted using the one stage-one envelope bid submission method, a combined evaluation report shall be prepared and submitted to the Adjudication Committee after completion of the evaluation.

(4) Where bids are submitted using the one stage-two envelope, two stage-two envelope or two stage bid submission methods—

(a) a technical evaluation report shall be prepared and submitted to the Adjudication Committee after completion of the detailed evaluation and shall be approved prior to inviting or opening financial bids; and

(b) a financial evaluation report shall be prepared and submitted to the Adjudication Committee after completion of the financial comparison.

(5) All evaluation reports shall contain reasons for the rejection of any bid and details of any non-material deviations accepted and the way in which they have been quantified and taken into account in the financial comparison.

(6) Detailed or technical evaluation reports shall contain recommendations on which a bidder should proceed to the financial comparison.

(7) Combined technical and financial evaluation reports shall contain recommendations on—

(a) the best evaluated bidder and the evaluated price;

(b) whether the recommended bidder should be subject to post-qualification;

(d) the price of the proposed contract, subject to any changes following negotiations.

(8) Any post-qualification shall be carried out in accordance with regulation 78.

(9) Any negotiations shall be carried out in accordance with regulation 79

78. Post-qualification criteria

(1) Where appropriate, a post-qualification criteria may be undertaken to determine whether the best evaluated bidder has the capability and resources to effectively carry out the contract.

(2) The criteria for post-qualification shall be set out in the bidding packages and may include—

(a) experience on similar contracts in the district, country or internationally;

(b) performance on similar contracts in the district, country or internationally

(d) qualifications and experience of personnel;

(e) financial capability to perform the proposed contract;

(f) facilities or representation at or near the location for performance of the contract;

(g) available capacity to undertake the assignment;

(h) litigation record; and

(i) any other relevant criteria.

(3) A local authority may seek independent references from bidders, and the results of reference checks may be used in determining the award of the contract.

(4) The criteria for post-qualification shall be limited to those necessary for performance of the intended contract and shall not be unduly restrictive.

(5) Post-qualification shall be undertaken for the best evaluated bidder only, and shall be recorded using FORM SF 007 set out in the Schedule.

(6) Where the best evaluated bidder does not meet the qualification criteria—

(a) the bid shall be rejected; and

(b) a post-qualification shall be undertaken for the next best evaluated bidder.

(7) An approval shall be obtained from the Adjudication Committee prior to rejecting any bid or undertaking an additional post-qualification on any other bidder.

(8) Where bidders have been pre-qualified, a full post-qualification is not required, but the pre-qualification information submitted shall be verified and an award may be denied to the best evaluated bidder if he or she is judged to no longer meet the pre-qualification requirements and criteria.

(9) The local authority shall consider—

(a) any material change in circumstances since submission of the pre-qualification information; and

(b) any information which has become available since the pre-qualification submission, which, in the local authority’s judgement, materially affects the capacity of the bidder to perform the contract.

79. Procedure for negotiations

(1) Negotiations may be undertaken under any method of procurement, in accordance with this regulation.

(2) Where a competitive procurement method was used, negotiations may relate to—

(a) minor alterations to the technical details of the statement of requirements;

(b) reduction of quantities for budgetary reasons, where the reduction is in excess of any provided for in the bidding packages;

(d) finalising the payment arrangements;

(e) mobilisation arrangements;

(f) agreeing on final delivery or works schedules to accommodate any changes required by a local authority;

(g) the proposed methodology or staffing;

(h) inputs required from a local authority; or

(i) clarifying details that were not apparent or could not be finalised at the time of bidding.

(3) Negotiations under competitive procurement methods shall not be conducted—

(a) to substantially change the technical quality or details of the requirement, including the tasks or responsibilities of the bidder;

(b) to materially alter the terms and conditions of contract stated in the bidding packages;

(d) to substantially alter anything which formed a crucial or deciding factor in the evaluation of the bids.

(4) Notwithstanding the provisions of subregulations (2) and (3), where a competitive procurement method was used, but only a single bid was received, negotiations may relate to any aspects of the bid in accordance with these Regulations.

(5) Where direct procurement was used, or the evaluation methodology was quality based selection, negotiations may relate to—

(a) alterations to the technical details of the statement of requirements;

(b) the reduction of scope or quantities for budgetary reasons, where the reduction is in excess of any provided for in the bidding packages;

(d) finalising the payment terms and arrangements;

(e) mobilisation arrangements;

(f) agreeing on final delivery or works schedules;

(g) the proposed methodology or staffing;

(h) inputs required from the local authority;

(i) clarifying details that were not apparent or could not be finalised at the time of bidding; or

(j) the total bid price and its constituent costs to obtain value for money.

(6) Negotiations with bidders are not permitted until after the Adjudication Committee has approved the Evaluation Committee’s recommendation—

(a) of the best evaluated bidder and the need to hold negotiations in the case of competitive methods of procurement; or

(b) that the single or sole bidder should be considered for contract award, subject to negotiations in the case of direct procurement.

(7) Negotiations shall only be held with the best evaluated bidder.

(8) The membership of the negotiation team shall be recommended by the Evaluation Committee and shall be approved by the Adjudication Committee.

(9) Negotiations shall be conducted by the negotiation team, who shall not commit the local authority to any proposed arrangements or agreements, but shall seek the approval of the Adjudication Committee prior to confirming any agreement reached.

(10) The negotiation team shall submit a recommendation to the Adjudication Committee to either—

(a) proceed with the contract award to the recommended bidder, incorporating the agreements reached during negotiations;

(b) revise the negotiation objectives and hold further negotiations; or

(11) Where the negotiation team recommends rejection of the bidder, they may also, where appropriate, recommend inviting—

(a) the next ranked bidder for negotiations in the case of competitive methods of procurement; or

(b) a new bidder to submit a bid in the case of direct procurement.

(12) The Adjudication Committee may—

(a) approve the recommendations;

(b) request further negotiations on specific points;

(d) cancel the negotiations in their entirety.

(13) The results of any approved negotiations shall be specified in a letter of bid acceptance and incorporated into the contract document.

(14) Where negotiations are commenced with the next ranked bidder or a new bid is invited, a local authority shall not reopen earlier negotiations, and the original bidder shall be informed of the reasons for termination of the negotiations.

80. Award of contract

(1) The bidding packages shall state the procedure for award of contract, which shall be either by—

(a) a placement of a written contract document; or

(b) issue of a letter of bid acceptance, which shall be confirmed by placement of a written contract document.

(2) Following the completion of the evaluation and any post-qualification and negotiations, the Evaluation Committee shall submit a recommendation for award of contract to the Adjudication Committee.

(3) The Adjudication Committee shall consider the recommendation in the same way as any other submission to the Adjudication Committee.

(4) Where the Adjudication Committee approves the recommendation, this shall constitute an award of contract decision.

(5) For the purpose of these Regulations, an award of contract decision by the Adjudication Committee shall not amount to a contract binding a local authority.

(6) A contract document, purchase order, letter of bid acceptance or other communication in any form conveying acceptance of a bid that would bind a local authority to a contract with the provider, shall not be issued prior to—

(a) an award of contract decision by the Adjudication Committee;

(b) the display of a notice of best evaluated bidder and the elapse of the notice period;

(c) confirmation being received from the Accounting Officer that the procurement is not subject to any administrative review;

(d) funding being committed in the full amount over the required period of the proposed contract; and

(e) approval being obtained from all necessary bodies after the Adjudication Committee, where required.

(7) Where a procurement requirement is subject to administrative review by either a local authority or the Competent Authority—

(a) a contract document, purchase order, letter of bid acceptance or other communication in any form conveying acceptance of a bid that would bind a local authority to a contract with the contractor, shall not be issued prior to completion of the administrative review process; and

(b) action shall not be taken that is contrary to the findings or recommendations of the administrative review.

(8) All contract awards, with the exception of those under micro procurement, shall be displayed within one working day of the contract award, on—

(a) the local authority’s notice board; and

(b) the local authority’s website.

(9) Following award of contract to the successful bidder, the unsuccessful bidders shall be notified and their bids rejected.

81. Public notice of best evaluated bidder

(1) Following an award of contract decision by the Adjudication Committee, a local authority shall, within two days of the decision of the Adjudication Committee, display a Notice of Best Evaluated Bidder, using FORM SF 008 set out in the Schedule.

(2) The notice shall clearly state that the notice of best evaluated bidder shall not amount to a contract.

(3) The notice shall be displayed on—

(a) the local authority’s notice board; and

(b) the local authority’s website.

(4) The notice of best evaluated bidder shall be published for a minimum of—

(a) eight days prior to contract award in the case of open or restricted bidding; and

(b) four days prior to contract award in the case of quotations and proposal procurement or direct procurement.

(5) Where an award of contract decision is changed after the publication of a notice of best evaluated bidder, a new notice of best evaluated bidder shall be displayed, in accordance with these Regulations prior to contract award or placement.

(6) This regulation shall not apply to—

(a) micro procurement; or

(b) procurement in emergency circumstances irrespective of the procurement method.

PART VII
Contract Management (regs 82-109)

82. Types of contracts

(1) A local authority shall use one of the following types of contract—

(a) a lump sum;

(b) time-based;

(d) framework;

(e) percentage;

(f) cost reimbursable;

(g) target price;

(h) retainer;

(i) contingency or success fee; or

(j) a combination of (a) to (i).

(2) A written approval of the Competent Authority shall be obtained for the use of any other type of contract and shall be obtained prior to issue of the bidding packages.

(3) A local authority shall select a contract type which is most appropriate to the requirement, most advantageous to the local authority and which offers an equitable contract to the provider.

(4) The choice of the contract type shall be determined in accordance with these Regulations and taking into account the—

(a) nature of the procurement requirements need to ensure effective competition;

(b) need to minimise risk for the local authority;

(d) likelihood of any delays or unforeseen circumstance requiring a contract extension or a variation or change order; and

(e) need for effective contract management and cost control.

83. Lump sum contract

(1) A lump sum contract shall be used where the content, duration and output of the procurement are well defined.

(2) A lump sum contract may include either a fixed price or a price adjustment.

(3) A lump sum contract may include interim or stage payments and shall be linked to clearly specified outputs or deliverables, which may include the following—

(a) deliveries of supplies, evidenced by appropriate delivery documentation;

(b) reports;

(d) bills of quantities;

(e) activity schedules;

(f) payment schedules;

(g) bidding packages;

(h) software programs; or

(i) any other output or deliverables appropriate to the contract.

84. Time based contract

(1) A time based contract shall be used when the scope and duration of the procurement requirement is difficult to define.

(2) The payment shall be based on—

(a) an agreed hourly, daily, weekly, monthly fee for either nominated personnel or certain types or grades of personnel; and

(b) reimbursable items using either actual expenses or agreed unit prices.

(3) The rates for personnel may include salary, social costs, overhead, fee or profit and, where appropriate, special allowances.

(4) Reimbursable items may include—

(a) subsistence, such as per diem and housing;

(b) transportation, which may be international or local;

(d) services and equipment such as vehicles, office equipment, furniture and supplies;

(e) office rent;

(f) insurance;

(g) printing documents;

(h) surveys;

(i) training, if it is a major component of the assignment; and

(j) any other appropriate items.

(5) A time based contract shall include a maximum amount of total payments to be made and this amount may include a contingency allowance for unforeseen work and duration.

(6) A time based contract may include interim or stage payments.

(7) The contract manager shall monitor time based contracts closely to ensure that the assignment is progressing satisfactorily, and payments claimed by the provider are appropriate and in accordance with the contract.

85. Admeasurement contract

(1) An admeasurement contract is a re-measurement, unit rate or bill of quantities contract and shall be used for works—

(a) which are not well defined;

(b) which are likely to change in quantity or specification; and

(2) The works shall be split into various items of work and quantities of each work item needed to complete the assignment shall be estimated and indicated in the bidding packages.

(3) A bidder shall be required to price each work item by indicating a unit rate for each item in the bill of quantities.

(4) The initial total contract price shall be calculated by multiplying the unit rate by the estimated quantities to give a total for each item, and then calculating the sum of the line item totals.

(5) The work actually performed shall be measured during the performance of the contract and shall be finally reconciled upon completion of the contract.

(6) Payment shall only be made for the final contract price, which shall be the total of actual quantities of work performed.

(7) An admeasurement contract may include either a fixed price or a price adjustment.

(8) An admeasurement contract may include interim or stage payments.

86. Framework contract

(1) A framework contract is a schedule of rates or indefinite delivery contract and shall be used—

(a) where requirements are needed “on call”, but the quantities and timing of the requirements cannot be defined in advance; or

(b) for requirements which are needed repeatedly or continuously over a period of time and having them available on a “call off” basis would reduce procurement costs or lead times.

(2) A bidder shall be required to indicate a unit rate for each item.

(3) A local authority shall indicate estimated quantities or values where this is possible or where it is necessary to obtain competitive bids, but shall not make a commitment to purchase the full quantity or value.

(4) Notwithstanding the provisions of subregulation (3), a local authority may make a commitment to purchase minimum quantities or values or to purchase all of its similar requirements from the successful bidder, where this is necessary or preferable to obtain competitive prices.

(5) A framework contract shall state the arrangements for obtaining specific requirements during the period of the contract, which shall be through the placement of “call off” or delivery orders where appropriate.

(6) Payments shall be made on the basis of the works, services or supplies actually delivered or performed.

(7) A framework contract may include either a fixed price or a price adjustment.

87. Percentage contract

(1) A percentage based contract shall be used where it is appropriate to relate the fee paid directly to the estimated or actual cost of the subject of the contract.

(2) The contract shall clearly define the total cost from which the percentage is to be calculated.

(3) Bidders shall indicate their fee rate as a percentage of the total cost of the requirement.

(4) Where appropriate, percentage contracts may include—

(a) a fixed target cost;

(b) minimum or maximum fees;

(d) incentive fees, related to any savings made through economic design, discounts obtained, cost reductions or similar.

88. Cost reimbursable contract

(1) A cost reimbursable contract shall be used—

(a) for emergency works, where there is insufficient time to fully calculate the costs involved;

(b) for high risk works, where it is more economical for the local authority to bear the risk of price variations than to pay the provider to accept the risk or where providers will not accept the risk.

(2) A local authority shall pay the contractor for—

(a) the actual cost of the works, as evidenced by receipts and other appropriate documentation; and

(b) a fee or profit to be agreed upon and as specified in the contract.

89. Target price contract

(1) A target price contract may be used in place of a cost reimbursable contract where—

(a) a target price can be agreed; and

(b) cost savings may be achieved by offering an incentive payment to the provider for any cost savings below the target price.

(2) A local authority shall pay the contractor for the actual cost of the works, as evidenced by receipts and other appropriate documentation.

(3) A local authority shall also pay the provider a fee or profit and an agreed percentage of any cost savings below the target price.

90. Retainer contract

(1) A retainer contract is used to retain a provider to avail services over a prescribed period of time, without defining the level and amount of services actually required.

(2) Payment under a retainer contract may include either—

(a) a flat fee, which represents the total payment due, irrespective of the level and amount of services actually provided during the prescribed period; or

(b) a flat fee as retainer for the prescribed period plus pre-agreed unit rates for services actually provided.

91. Contingency or success fee contract

(1) A contingency or success fee contract is used to link a provider’s fee to an achieved objective, to provide an incentive to the successful completion of a particular task, event or action.

(2) Payment under a contingency or success fee contract shall include a success fee, which may be—

(a) a pre-agreed amount linked to the successful completion of a target or event; or

(b) a percentage of a pre-determined amount of proceeds.

(3) Payment under this regulation may also include a basic flat fee, which is not linked to successful completion.

(4) The contract shall describe the nature of the success to which the success fee shall be applicable, together with any timescale that the task, event or action is to be achieved by.

92. Other contracting arrangements

(1) Where a local authority wishes to use any other type of contract or contracting arrangements, including, but not limited to, acquisition by rental, lease, hire purchase, licence, tenancy or franchise, it shall seek guidance from the Competent Authority on the procurement procedures and documentation that shall apply.

(2) Where a project is to be financed under a Build Own Operate (BOO), Build Own Transfer (BOT), Build Own Operate Transfer (BOOT), Public Private Partnership (PPP) or similar type of private sector arrangement, the Local authority shall seek guidance form the Competent Authority on the procurement procedures and documentation that shall apply.

(3) The applicable procurement procedures shall be in accordance with the basic principles of public procurement set out in the Act and these Regulations.

(4) The Competent Authority may, if required, issue guidelines on such contracting arrangements, which shall be consistent with these Regulations.

93. Contract pricing

(1) A local authority shall place contracts based on fixed and firm prices for procurement requirements that are to be completed within 18 months from the placement of a contract.

(2) A local authority may place contracts with price adjustment provisions for procurement requirements that will not be completed within 18 months from the placement of a contract.

(3) The Competent Authority shall provide a local authority with advice in connection with internationally accepted practices in relation to pricing standards for differing procurement requirements.

94. Price adjustment

(1) Price adjustment provisions may be included in contracts extending beyond 12 months, where it is more economical for a local authority to accept the inflation risk than to pay the additional costs for the supplier to accept the risk.

(2) Where price adjustment provisions are included, the method for calculating adjustments, and any restrictions or conditions on adjustments, shall be clearly stated in the solicitation document.

(3) Price adjustments shall be calculated by use of a pre-defined formula, which separates the total price into components, such as—

(a) labour;

(b) equipment;

(d) fuel,

which are adjusted by price indices specified for each component.

(4) Where the payment currency is different from the source of the input and corresponding index, a correction factor shall also be applied in the formula, to avoid incorrect adjustment.

(5) The formula, the price indices, any correction factors and the base date for application shall be clearly stated in the bidding packages and any resulting contract.

(6) The formula and price indices used shall be appropriate to the type of procurement and the source or sources of the inputs and shall use Industry Standards wherever possible.

95. Payment terms

A bidding package and a contract shall detail the payment terms that shall apply and specify the payment—

(a) method;

(b) structure;

(d) period; and

(e) currencies.

96. Payment method

(1) A local authority shall agree with the provider on the method of payment that shall apply to any contract.

(2) Where a bidder proposes a payment method, the bidder shall be instructed to include the full cost thereof in the bid price.

(3) The method of payment shall be comprehensively defined in the contract including the payer of any costs associated with the method agreed.

(4) Payment methods shall be acceptable to the Bank of Botswana in accordance with the guidelines.

97. Payment structure

(1) A local authority shall consider and state in the Bidding packages and contract, the structure of payments to be made.

(2) The structure and amount of payments shall be determined for each procurement requirement by best practices and such payment structure may include—

(a) advance payments;

(b) stage payments, which shall be linked to specific deliverables or milestones and may be stated in percentage terms of the defined amount or specific amounts in given intervals;

(c) regular interim payments, which shall be based on general progress or the work performed and may relate to a specified time period or a measurement of work performed; and

(d) retained payments, which shall be linked to specific contract events, such as installations or warranties.

98. Advance payment

(1) Except where best practices or market forces dictate, a local authority shall not enter into a contract which requires an advance payment.

(2) Where an advance payment is determined to be consistent with best practices, an advance payment security shall always be required and the requirement for a security shall be stated in the bidding packages.

(3) An advance payment shall be recovered from subsequent payments made to the provider, which shall be subject to a percentage reduction equal to the percentage paid as an advance payment.

(4) An advance payment may be made for such activities as—

(a) mobilisation or start up costs in respect of the provision of works or services; and

(b) certain circumstances in respect of the provision of supplies, such as items that have to be specially or custom manufactured.

99. Interim and stage payment

(1) Where best practices dictate, a local authority may enter into a contract in which an interim or stage payment is permitted.

(2) Where an interim or stage payment is permitted, these shall comply with the following conditions—

(a) payments shall be linked to specific, verifiable and measurable deliverables, contract events, time periods or work which must be stated in the bidding packages and the contract;

(b) individual payments shall not exceed the cost or value of the deliverable, time period or work to which it is linked;

(c) payments may require the provision of a payment security where during the delivery of the works, services or supplies, risk or title remains with the provider; and

(d) where a payment security is determined to be appropriate, regulation 101 shall apply.

100. Retained payment

(1) Where a local authority has determined that a retained payment is appropriate, the contract shall state the—

(a) percentage or amount of the total contract value to be retained;

(b) period or the event at which the retention shall be released;

(2) A payment security may be permitted to be substituted for a retention payment in accordance with regulation 101.

101. Payment security

(1) A payment shall not be made to a provider under a contract for works, services or supplies, without receipt of the deliverables detailed in the contract.

(2) Notwithstanding subregulation (1), payment may be made prior to receipt of deliverables where an appropriate payment security is obtained.

(3) The bidding packages and the contract shall state the requirement for a payment security.

(4) All payment securities shall—

(a) be in a form provided by the Competent Authority and included in the bidding packages;

(b) be in a form and from an institution that is wholly acceptable to the Bank of Botswana;

(c) be valid for a prescribed period beyond the final expected transaction date of the resulting contract or expected release date as appropriate; and

(d) where appropriate, allow for the progressive reduction of the secured sum, where successive payments are released against the secured sum.

(5) The prescribed period in subregulation (3)(c) shall be determined by taking into account the circumstances of the procurement requirement and the likelihood of extensions or delays to the final completion date.

(6) A payment security shall be released promptly by the local authority upon expiry of the terms of the security or upon reduction of the secured sum to zero, whichever comes later.

(7) The proposed release of a payment security shall be communicated to the provider and returned in accordance with the provider’s instructions.

102. Payment document

(1) A local authority shall clearly state in the solicitation document, the document against which each payment is to be made.

(2) Payment documentation may include, but not be limited to, documentation certifying or evidencing the—

(a) delivery or receipt of requirements by the consignee in accordance with the delivery terms of the contract;

(b) contents of the consignments delivered;

(d) successful inspection of the delivered items;

(e) origin or eligibility of the delivered items;

(f) payment of particular costs specified in the contract, such as duties, levies or taxes that may be due and payable by the provider on the delivered items;

(g) acceptance of installation or commissioning by the user of the delivered items;

(h) receipt and acceptance of reports, manuals, guides, or other documentation required as deliverables;

(i) actual works or services completed;

(j) payment of sums due to subcontractors; and

(k) actual sums paid for reimbursable costs, such as air tickets, per diem and internal reports.

(3) A payment request from a provider shall always require an original invoice from the provider certifying the payment due.

(4) Invoices shall be sequentially numbered and not be backdated or forward dated.

103. Payment to contractor

(1) A payment in respect of any sum due under a contract may only be made in the name of the provider stated in the contract through recognised banking channels and practices.

(2) A payment shall not be made to any person other than the provider, unless the provider has so requested and confirmed in writing or through proper instruments detailing the recipient of such payment.

104. Payment period

The period for payment shall be within 30 days from certification of invoices, except where this is varied in the special conditions of the contract.

105. Payment and payment delays

(1) A local authority shall ensure that all payment requests are processed promptly within the payment period specified in the contract.

(2) A payment request shall be made by a contractor to a local authority in accordance with the terms of the contract placed by the local authority.

(3) Upon receipt from a contractor of a payment request, the local authority shall, within five days from receipt, examine the payment request and ascertain whether it is accurate and in accordance with the terms of the contract.

(4) Where the payment request is accurate and in accordance with the terms of the contract, a local authority shall certify it for payment in accordance with the terms of the contract.

(5) Where the payment request contains errors or discrepancies, is supported by incorrect or incomplete documentation or is in any other way not in accordance with the terms of the contract, the payment request shall not be certified but shall be returned to the provider, detailing fully, the reasons the request cannot be certified for payment.

(6) Where a payment request has been returned, the provider shall be entitled to present a new or amended payment request, which shall be treated in the same way as the original payment request.

(7) A local authority shall be responsible for organising payment to be made to the provider within 30 days from the date of certification of any payment request as correct, unless the payment period has been varied in the special conditions of the contract.

(8) Where a payment to a provider is delayed not through default as in subregulation (5) or a query by a local authority, such delay shall attract interest at a compound interest rate of 1.5 per cent per month, calculated on a daily basis for the period that the payment remains outstanding.

(9) Notwithstanding subregulation (5), a query by a local authority of any part of a payment invoice from a contractor shall not delay prompt payment of the unchallenged portion of the invoice to the provider.

106. Currency of payment and exchange rate movements

(1) A payment shall be made by a local authority in the currency stated in the contract.

(2) When permitted under a contract, where a payment to a provider is to be made in Botswana and he or she is required to remit all or part of the amount abroad, the contract amount in Botswana currency shall be paid to the provider less, or plus, as the case may be, an amount as specified on the provider’s invoice representing any of the following exchange rate movements—

(a) fluctuations which may have occurred between the date of conversion to Botswana currency as reflected in the bidding packages and bid, and the date of invoice, provided that the invoice date is not more that 10 days later than the date of delivery or shipment; and

(b) any further fluctuations in the rate of exchange, which may occur between the invoice date and the actual date of remittance abroad, provided that such further fluctuation is more than 3 per cent, and the remittance is made within 10 days of the date of the contract or purchase order, as applicable.

(3) All claims by providers for exchange rate movements shall be accompanied by the following documentation—

(a) a copy of the relevant invoice from the foreign supplier;

(b) a copy of the bank remittance voucher;

(d) a certificate of audit, or similar document, in cases where amounts that are not related to a specific order are included in the remittance voucher; and

(e) any other information which may be reasonably requested by the contract manager.

(4) Failure to provide the required supporting documentary evidence may delay or invalidate claims.

(5) Where a bidder fails to comply with the requirements of contract affecting the admissibility of his or her claim, the cost of exchange rate movements shall be borne by the contractor.

107. Variation or change order

(1) A contract variation or change order is a change to the price, completion date or statement of requirements of a contract within the terms and conditions of the award decision, which is provided for in the contract to facilitate adaptations to unanticipated events or changes in requirements.

(2) A contract variation or change order may be issued co-jointly by the contract manager and the head procuring and disposing entity, with the approval of the Adjudication Committee.

(3) Notwithstanding subregulation (2), any additional funding required for a variation or change order shall be defined in the contract.

(4) A contract may be varied in accordance with a compensation event or the issue of a variation, change order or similar document, as provided for in the contract.

(5) Any such variation or change order shall only be permitted in accordance with the terms and conditions of the existing contract and shall be authorised by the contract manager on a standard form.

(6) Any contract which provides for variations or change orders shall include a limit on variations or change orders and the limit shall not be exceeded without the issue of a contract amendment.

108. Contract amendment

(1) Where a contract needs to be amended in order to change the original terms and conditions, a contract amendment shall be prepared by the procuring and disposing entity.

(2) A contract amendment shall not be issued to the contractor prior to—

(a) approval being obtained from the Adjudication Committee; and

(b) funding being committed in the full amount of the amended contract price over the required period of the revised contract.

(4) A contract amendment for additional quantities of the same items shall use the same or lower unit prices as the original contract.

(5) No individual contract amendment shall increase the total contract price by more than 15 per cent of the original contract price.

(6) Where a contract is amended more than once, the cumulative value of all contract amendments shall not increase the total contract price by more than 25 per cent of the original contract price.

109. Termination of contract

(1) Where the contract manager or the Accounting Officer believes that a contract should be terminated, he or she shall prepare a recommendation for submission to the Adjudication Committee, which shall be submitted with a copy of the relevant contract.

(2) The recommendation shall state—

(a) the name of the provider and the procurement reference number;

(b) why termination is recommended;

(d) the contractual grounds for termination;

(e) the costs, if any, which will be payable by the local authority; and

(f) any other relevant information.

(3) A contract shall not be terminated prior to obtaining the approval of the Adjudication Committee.

(4) Where a contract is terminated the Accounting Officer shall inform the contractor involved.

PART VIII
Procurement of Supplies (regs 110-118)

110. Standardisation policy

Where a standardisation policy has been approved by the Cabinet, the Accounting Officer may certify on a standard form that the policy is in force and detailed in relation to each procurement activity.

111. Statement of requirements for supplies

(1) The statement of requirements for the procurement of supplies shall be defined by the—

(a) delivery and completion schedule;

(b) list of supplies and quantities, including any services or works incidental to the provision of those supplies;

(d) drawings, where appropriate.

(2) The specification referred to under subregulation (1) shall contain a complete, precise and clear description of the supplies required and shall include—

(a) a clear scope definition;

(b) the purpose and objectives of the proposed purchase;

(d) a generic specification to an appropriate level of detail;

(e) a functional description of the qualities, including any environmental or safety features required of the subject of the procurement;

(f) performance parameters, including outputs, time scales, and any indicators or criteria by which the satisfactory performance of the specification can be judged;

(g) process and material descriptions;

(h) dimensions, symbols, terminology, language, packaging, marking and labelling requirements;

(i) a common specification standard issued by the Competent Authority; and

(j) a relevant industry standard.

112. Use of brand name

(1) A specification shall not be issued with reference to a particular trademark, brand name, patent, design, type, specific origin, producer, manufacturer, catalogue or numbered item.

(2) Where there is no other sufficiently precise or intelligible way of characterising a requirement except by the use of a reference listed in subregulation (1), the description shall be used, but shall be followed by the words “or equivalent” and shall serve only as a benchmark during the evaluation process.

(3) Notwithstanding the provisions of subregulation (1), where a standardisation policy has been approved, the corresponding trademark, brand name, patent, design, type, specific origin, manufacturer, producer, catalogue or numbered item may be used in the statement of requirements.

113. Bidding packages for supplies

(1) A bidding package for each individual procurement requirement for supplies shall be drafted using the appropriate standard bidding packages for supplies listed in the standard form.

(2) A bidding package for supplies shall specify the following and any other information, terms or conditions required, in accordance with these Regulations and guidelines—

(a) the specification and list of supplies required;

(b) the amount and form of a bid security required;

(d) the validity of bids required;

(e) the bid submission methodology;

(f) the currency in which bids are to be submitted;

(g) the procedure for conversion of prices to a single currency for evaluation purposes, including the source and date of exchange rates to be used for conversion;

(h) the currency or currencies in which the contract will be paid;

(i) the payment terms including any advance payment, stage payment or payment retentions together with the need for any resulting payment securities;

(j) the basis of prices required, either fixed or variable, and if variable, the method for calculating variations;

(k) the method of payment;

(l) the documentation required for payment;

(m) the delivery terms required;

(n) any special requirements with respect to packaging, marking and labelling;

(o) the delivery documentation required, if different from that required under paragraph (i);

(p) the delivery period required;

(q) any inspection or tests required;

(r) any insurance requirements;

(s) any warranty required;

(t) the evaluation methodology and criteria; and

(u) the type of contract to be placed.

(3) Where a procurement is conditional upon the acceptance of a trade-in requirement, the bidding packages shall include details of the asset to be traded in, in order that a costing can be offered for the asset to offset against the cost of the new procurement requirement.

114. Types of contract under supplies

(1) A lump sum contract shall be used where the specification, the quantity required and the required delivery schedule are known.

(2) Framework contracts shall be used—

(a) for supplies, which are needed repeatedly or continuously over a period of time;

(b) where there are logistical and procurement reasons for having the requirement available on a “call off” basis; or

(3) Consent shall be obtained from the Competent Authority to use a type of contract other than those stated in these Regulations.

115. Scope of contract for supplies

(1) All contracts for supplies shall clearly indicate the scope of the contractor’s responsibilities under the contract, which may include any of the following—

(a) supply;

(b) delivery, in accordance with the specified International Commercial Terms (INCOTERMS);

(d) training in use, maintenance or repair of the supplies; or

(e) the provision of after-sales services, which may include the supply and delivery of consumables and spare parts and the servicing, maintenance, repair, calibration and modification of equipment over the life cycle of the supplies or stores where necessary.

(2) Consent shall be obtained from the Competent Authority for any contract whose scope is not stated in these Regulations.

116. Delivery terms under supplies

(1) Delivery terms shall be determined in accordance with the International Commercial Terms, hereinafter referred to as INCOTERMS, issued by the International Chamber of Commerce.

(2) The bidding packages shall clearly state the version of INCOTERMS to be used.

117. Insurance for supplies

(1) A local authority shall state the required level of insurance against loss, damage and theft in the solicitation document and contract.

(2) A local authority shall state in the bidding packages whether or not the bidder is required to arrange insurance and include the cost of such insurance in their bid by using the appropriate INCOTERMS.

118. Inspection and testing

(1) A local authority shall consider whether supplies should be inspected or tested during manufacture, prior to shipment, on delivery or prior to acceptance to verify their technical quality, quantity, packaging or any other detail.

(2) Inspection and testing may include an independent technical inspection or tests conducted under the provider’s own internal quality control procedures.

(3) The decision on whether inspection is required shall take into account—

(a) the technical complexity of the supplies;

(b) the quantity and value of the supplies;

(c) the likely cost, delay or other effect to the local authority of the receipt of the wrong quantity, sub-standard or damaged supplies;

(d) the cost of inspection; and

(e) the provider’s internal quality control, standards and procedures.

(4) Where inspection is required, a local authority shall include details of the inspection in the bidding packages including—

(a) the type of inspection or tests to be performed and the standards to be met;

(b) the location of the inspection or tests, whether at the provider’s premises, the delivery point, the installation site or elsewhere;

(d) the timing of the inspection, whether during manufacture, prior to shipment or delivery, during or after installation or at any other time;

(e) any notification or documentation required from the provider;

(f) that the provider shall avail any samples required for inspection at no additional cost;

(g) who will pay the costs of the inspection, including the cost of facilities, labour, apparatus and materials, and whether any costs should be included in the bid;

(h) arrangements and costs for any re-inspection required; and

(i) any other relevant details.

(5) The contract shall include appropriate clauses describing the provider’s obligations and responsibilities with regard to any inspection.

(6) Where a third party provider is required to inspect supplies, the services shall be contracted following the appropriate procurement method and rules for the procurement of services.

(7) Where inspection or testing consists of the provider’s own internal quality control procedures, the local authority may, if so specified in the bidding packages or contract, send a representative to witness the internal tests or request copies of the reports from such tests, and have these assessed independently.

PART IX
Procurement of Works (regs 119-125)

119. Statement of requirements for works

The statement of requirements for the procurement of works shall be defined by the scope of works, bill of quantities, specifications, drawings or the equivalent, as may be appropriate, and it shall contain a clear, unambiguous and precise description or comprehensive brief of the works required and shall include as appropriate—

(a) a background narrative to the works required;

(b) the objectives of the works required;

(d) the supervision requirements, working relationships and specific administrative arrangements that are to apply;

(e) the duration of the works;

(f) a common specification standard issued by the Competent Authority;

(g) a relevant industry standard; or

(h) such other information as may be necessary to ensure a bidder has sufficient information to submit a responsive bid.

120. Bidding packages for works

Bidding packages for each individual procurement requirement for works shall be drafted using the appropriate standard bidding packages for works and shall specify the following and any other information, terms or conditions required, in accordance with the Regulations and guidelines—

(a) design, specifications, drawings, bill of quantities or equivalent as may be applicable;

(b) the amount and form of any bid security required;

(d) the validity of bids required;

(e) the bid submission methodology;

(f) the currency in which bids are to be submitted;

(g) the procedure for conversion of prices to a single currency for evaluation purposes, including the source and date of exchange rate to be used for conversion;

(h) the currency in which the contract will be paid;

(i) the payment terms, including any advance payments, interim or stage payments or payment retentions together with the need or any payment securities;

(j) the basis of prices required, either fixed or variable, and if variable, the method for calculating variations;

(k) the method of payment;

(l) the documentation required for payment;

(m) the schedule of completion;

(n) the functions and authority of the client’s technical representative, if any;

(o) any inspection or tests required, and the test method;

(p) requirements relating to certification of conformity;

(q) the insurance cover or indemnity required;

(r) the evaluation methodology and criteria;

(s) the type of contract; and

(t) any preference or reservation schemes applicable to the procurement.

121. Evaluation for works

(1) The preferred evaluation methodology for works shall be the technical compliance selection.

(2) Quality and cost based selection may be used for design and build or turnkey contracts, where there is a consultancy element or where comparative elements such as the quality of finish, performance and operating costs need to be included in the evaluation.

(3) Notwithstanding subregulation (2), a local authority shall always use the technical compliance selection under direct procurement.

(4) Consent shall be obtained from the Competent Authority to use any other evaluation methodology.

122. Types of contracts for works

(1) A lump sum contract shall be used for buildings and other forms of construction where the works are well defined and are unlikely to change in quantity or specification, and where encountering difficult or unforeseen site conditions, such as hidden foundation problems, is unlikely.

(2) An admeasurement contract shall be used for buildings and other forms of construction where the works are not well defined or are likely to change in quantity or specification, and where encountering difficult or unforeseen site conditions, such as hidden foundation problems, is likely.

(3) A framework contract may be used where quantities are not defined and—

(a) there is a need to have works “on call” and the extent and timing of the requirement cannot be defined in advance; or

(b) requirements are needed repeatedly or continuously over a period of time and having the requirement available on a “call off” basis would reduce procurement costs or lead times.

(4) A cost reimbursable contract may be used—

(a) for emergency works, where there is insufficient time to fully calculate the costs involved; or

(5) A target price contract may be used in place of a cost reimbursable contract where—

(a) a target price can be agreed; and

(b) cost savings may be achieved by offering an incentive payment to the provider for any cost savings below the target price.

(6) Consent shall be obtained from the Competent Authority to use a type of contract other than those stated in these Regulations.

123. Scope of contract for works

(1) All contracts for works shall clearly indicate the scope of work and responsibility for design.

(2) The contract may be—

(a) standard, where the works are fully designed by the local authority or its consultant prior to bidding and the provider is responsible for construction only;

(b) design and build, where the provider is responsible for design, based on the local authority’s parameters, as well as construction; or

(c) turnkey, where the provider is responsible for design, engineering, the supply and installation of equipment and the complete construction, based on the local authority’s performance specifications, except that the local authority may remain responsible for the design and engineering, and invite bids for a single contract for the supply and installation of all works and supplies required for the project component.

(3) Management contracting contracts may be used where appropriate, but shall be subject to the provisions governing the procurement of services.

(4) Consent shall be obtained from the Competent Authority for any contract which scope is not stated in these Regulations.

124. Insurance and indemnity for works

(1) A local authority shall ensure that all procurement requirements for works are adequately and appropriately insured, from the commencement of works to the end of the defects liability period, for events which are due to the contractor’s risks, including—

(a) loss of or damage to the works, plant and materials;

(b) loss of or damage to equipment;

(d) personal injury or death.

(2) All insurance shall provide for compensation to be payable in the type and proportion of the currency required to rectify the loss or damage incurred.

(3) A local authority shall state the insurance required in the bidding packages and shall require bidders to include the costs of insurance in their bids.

125. Transfer of property for works

All works contracts shall clearly state—

(a) the procedure for transfer of—

(i) works to the local authority, including when title is transferred and how the transfer of title shall be documented;

(ii) substantially completed works;

(b) who has ownership of all property on site during implementation of the contract;

(c) any obligations of the contractor in relation to the custody and care of property of the local authority when being occupied or used during implementation of the contract; and

(d) arrangements for the temporary handover and return of all property of the local authority being occupied or used during implementation of the contract.

PART X
Procurement for Services (regs 126-132)

126. Statement of requirements for services

(1) The statement of requirements for the procurement of services shall be defined in the Terms of Reference or brief.

(2) The Terms of Reference, or brief, as appropriate, shall contain a clear and precise description of the services required and shall include, where appropriate—

(a) a background narrative to the services required;

(b) the objectives of the services required together with a list of targets to be achieved by the contractor;

(d) a schedule of deliverables for the assignment or outputs against which the achievements of the services can be measured;

(e) the management and reporting lines of the provider to the local authority and the specific administrative arrangements and reporting requirements that are to apply;

(f) the duration and timetable of the assignment; and

(g) the relevant industry standards for approaching and implementing an assignment.

127. Bidding packages for services

(1) A bidding package for each individual requirement for services shall be drafted using the appropriate standard bidding packages for professional or non-professional services.

(2) Bidding packages for services shall specify the following and any other information, terms or conditions required, in accordance with the Regulations and guidelines—

(a) the terms of reference or brief and expected input of key personnel, where applicable;

(b) the amount and form of any bid security required;

(d) the validity of bids required;

(e) the bid submission methodology;

(f) the currency in which bids are to be submitted;

(g) the procedure for conversion of prices to a single currency for evaluation purposes, including the source and date of exchange rate to be used;

(h) the currency in which the contract will be paid;

(i) the basis of prices required, either fixed or variable, and if variable, the method for calculating variations;

(j) the method of payment;

(k) the payment terms, including any advance payment, stage payments or payment retentions together with the need for any resulting payment security;

(l) the duration and timing of inputs and any completion schedule;

(m) the deliverables or outputs required;

(n) the evaluation methodology and criteria; and

(o) the type of contract to be placed.

128. Availability of staff

The bidding packages shall state, where appropriate that—

(a) the bidder shall confirm the availability of key professional staff, whose curriculum vitaes (CVs) are included in a bid and form part of the evaluation, prior to submission of the bid;

(b) signed statements of availability from key professional staff shall be included in the bid;

(c) where a substitution of key professional staff is unavoidable or is agreed by the local authority, the staff provided shall be of equivalent or superior qualifications and experience; and

(d) the bidder shall stipulate a proposal for skills transfer.

129. Evaluation for services

(1) A quality and cost based selection method may be used for professional services where the Terms of Reference are well defined.

(2) A quality based selection method may be used for professional services for—

(a) highly specialised assignments, for which it is difficult to define precise terms of reference and the required input from the service providers, and for which the client expects the contractors to demonstrate innovation in their bids;

(b) assignments that have a high downstream impact and in which the objective is to have the best experts; or

(c) assignments that can be carried out in substantially different ways, so that bids are not comparable and in which the value of the services depends on their quality.

(3) A fixed budget selection method may be used for professional services when the assignment is simple, can be precisely defined, and when the budget is fixed.

(4) A least cost selection method may be used for professional services assignments of a standard or routine nature where well established practices and standards exist.

(5) A technical compliance selection method shall be used for non-professional or commercial services.

(6) Notwithstanding the provisions of subregulations (1), (2), (3) and (4), a local authority shall always use the technical compliance selection under direct procurement.

(7) Consent shall be obtained from the Competent Authority to use any other evaluation methodology.

130. Types of contracts for services

(1) A lump sum contract shall be used for—

(a) assignments in which content and the duration of the services, as well as the required output of the consultants, are clearly defined; or

(b) for simple planning and feasibility studies, environmental studies, detailed design of standard or common structures and the preparation of data processing systems.

(2) A time based contract shall be used—

(a) when it is difficult to define the scope and the length of services, either because the services are related to activities by others for which the completion period may vary or the input of the consultants required to attain the objectives of the assignment is difficult to assess; or

(b) for complex studies, design, engineering and supervision services, advisory services, management services and most training assignments.

(3) A framework contract may be used—

(a) where there is a need to have services “on call” and the extent and timing of the requirement cannot be defined in advance;

(b) for requirements which are needed repeatedly or continuously over a period of time and having the requirement available on a “call off” basis would reduce procurement costs or lead times; or

(4) A percentage based contract may be used—

(a) where it is appropriate to relate the fee paid directly to the estimated or actual cost of the subject of the contract, such as the project construction cost, cost of goods procured, auctioned or inspected; or

(b) for architectural, third party procurement, auction or inspection services.

(5) A retainer contract may be used—

(a) where the local authority wishes to retain a specialised provider to avail services over a prescribed period of time, and cannot define the level and amount of services actually required; or

(b) to retain advisers for the implementation of complex projects or for technical troubleshooting.

(6) A contingency or success fee contract may be used where it is appropriate to link a provider’s fee to an achieved objective, so as to provide an incentive to the successful completion of a particular task, event or action.

(7) Consent shall be obtained from the Competent Authority to use a type of contract other that those stated in these Regulations.

131. Insurance and indemnity for services

(1) A local authority is required to ensure that all—

(a) procurement requirements for services are adequately and appropriately indemnified against damage, loss or injury to any person or property arising from the services being provided and against any actions, suits, claims, demands, costs and expenses occasioned by negligence or breach of statutory duty by the provider; and

(b) providers maintain adequate professional liability insurance coverage against negligent performance.

(2) A local authority shall state the insurance and indemnity required in the bidding packages and shall require bidders to include the costs of such insurance and indemnity in their bids.

(3) A local authority shall take out the insurance required by law and any other that may be deemed fit.

132. Property for services

All services contracts shall clearly state—

(a) who has ownership of all property purchased or used during implementation of the contract;

(b) any obligations of the provider in relation to the custody and care of property of the local authority when being occupied or used during implementation of the contract;

(c) arrangements for the temporary handover and return of all property of the local authority being occupied or used during implementation of the contract; and

(d) arrangements for the handover, if appropriate, of all property purchased during implementation of the contract.

PART XI
Disposal of Public Assets (regs 133-156)

133. Disposal planning

(1) The Accounting Officer shall ensure that the assets of the local authority are reviewed on an annual basis, to identify those which are—

(a) obsolete and should be subject to disposal;

(b) serviceable but should be disposed of either because—

(i) they are no longer needed,

(ii) it makes commercial sense to dispose of them before they become unserviceable,

(iii) they are surplus to needs.

(2) Assets to be disposed of shall be grouped in contracts or lots in a manner which shall attract the maximum possible competition.

(3) Where assets are to be disposed of through public auction, a local authority shall maximise the number of assets to be disposed of at one time in order to reduce the administration and transaction costs.

(4) Local authorities may pool assets for purposes of common disposal.

134. Initiation of disposal requirements and approval of disposal

(1) The procuring and disposing entity or the department responsible for purchasing and supply shall initiate the disposal process.

(2) Disposal requirements shall be documented using FORM SF 009 set out in the Schedule, which form shall include a clear indication of the assets to be disposed of and the approval to commence disposal proceedings for the specified assets.

(3) Approval to commence disposal proceedings shall be evidenced by the signature of the Accounting Officer, or any official authorised by him to sign, on the standard form documenting disposal requirements.

(4) A specific reference number shall be allocated to each disposal requirement at the initiation stage, using the referencing system given in the guidelines and all documentation related to the disposal requirement shall also state the appropriate reference number from the assets register of the local authority.

135. Methods of disposal

(1) A local authority shall select one of the following disposal methods—

(a) public auction;

(b) public bidding;

(d) direct negotiations;

(e) trade-in;

(f) transfer to another local authority;

(g) conversion or classification of assets into another form; or

(h) destruction of assets

(2) In the selection of a disposal method a local authority shall take into account the following factors—

(a) the potential market value of the asset;

(b) the volume of the asset, whether one-off or bulk;

(d) the location of the asset;

(e) any restrictions on export or end-users;

(f) national security or public interest issues;

(g) health and safety issues;

(h) environmental considerations;

(i) the trade-in value of the asset; and

(j) the possibility of transferring the asset to another local authority.

136. Public auction

(1) A public auction may be used where an auction offers a cost-efficient way of disposing of assets and there is—

(a) a large number of potential bidders;

(b) a large number of assets to be disposed of in one location;

(d) no condition or end-user or export restriction attached to the sale.

(2) Submissions to the Adjudication Committee in respect of a public auction shall be made using FORM SF 010 set out in the Schedule.

(3) When undertaking disposal by public auction, the local authority may appoint a registered auctioneer to conduct the process on its behalf.

(4) One of the valuations of assets may be done by the auctioneer, who will be responsible for disposing of the assets.

(5) A local authority may, where appropriate, set a reservation price for property to be auctioned.

(6) Bids shall be solicited through the publication and display of a notification of public auction.

(7) The period between the publication of the notification of public auction and the date of the auction shall be a minimum of 10 days to allow sufficient time for potential bidders to inspect the assets.

(8) The formal bidding packages shall not be issued and any additional information, such as an auctioneer’s catalogue, shall be for information purposes only and shall not be considered bidding packages.

(9) Bids shall be oral and the procedure for bidding shall be specified by the auctioneer in accordance with normal auction practices.

(10) Bids shall be evaluated on the basis of price only.

(11) Negotiations shall not be permitted.

(12) The contract shall be awarded to the bidder offering the highest price, as determined by the auctioneer and the successful bid shall be declared at the auction.

(13) A written contract document shall not be required.

(14) The successful bidder shall be required to pay at least 50 per cent of the contract price, immediately, after award of contract.

(15) The auctioned property shall remain the custody of the local authority until paid for in full.

(16) The successful bidder shall be required to pay the balance of the contract price within five days of the award of contract.

(17) Where a bidder fails to make payment, in accordance with subregulations (14) or (16), the contract may be terminated and the deposit forfeited.

(18) The Accounting Officer shall register and keep a register of potential bidders before the commencement of an auction.

(19) The Accounting Officer shall stop the registration of potential bidders two hours before the commencement of an auction.

137. Public bidding

(1) Public bidding may be used—

(a) for high-value or unusual assets;

(b) for assets located in remote areas;

(d) for assets with end-user or export restrictions attached to their sale; and

(e) where conditions need to be attached to the sale of the asset or post-bid negotiations may be required.

(2) Bids shall be solicited by the publication and display of a public invitation notice, indicating that interested bidders may obtain the bidding packages from the local authority.

(3) Public invitation notices shall be published and displayed in accordance with FORM SF 010 (4) set out in the Schedule.

(4) The minimum advertising period shall be four working days.

(5) The minimum bidding period under this regulation shall be 10 days.

(6) A local authority shall require bidders to submit sealed, written bids.

(7) Evaluation based on price only shall be the preferred evaluation methodology.

(8) Evaluation based on price and other factors may be used.

(9) Post-bid negotiations may be undertaken in accordance with provisions of these Regulations.

(10) Contract award shall be by a decision of the Adjudication Committee, in response to a recommendation from the Evaluation Committee.

(11) Contract placement shall be by issue of a contract document to the successful bidder.

(12) A notice of award of contract shall be displayed using FORM SF011 set out in the Schedule.

138. Sale to public officials

(1) In the interests of promoting probity, fairness and competition, a local authority shall not dispose of public assets outside of a public process, where an open and competitive process is likely to be successful.

(2) A disposal may be restricted to sale to local authorities officials in rare circumstances—

(a) where there is unlikely to be any benefit or financial advantage to the local authority in using any other disposal method;

(b) where there are a small number of low value items which are unlikely to attract any public interest;

(c) where the personal use of particular assets would directly benefit the performance of local authorities officials in the execution of their duties within the local authority; and

(d) in remote locations, where any other method of disposal would be difficult, but such disposal shall be managed by an independent agency.

(3) Assets shall only be released for sale to local authorities officials where the items will clearly be for personal and not business or commercial use.

(4) Business or commercial use shall be considered as—

(a) an excessive number of purchases of similar assets within a limited time period;

(b) the frequent resale of assets purchased within a limited time period following the disposal; or

(5) A staff member involved in initiating the disposal process, valuation or managing the disposal process shall not be permitted to participate as a bidder.

(6) Assets shall not be grouped in lots, but sold as separate items, except where—

(a) a group of items is of very low value;

(b) a group of items form a natural set; or

(7) Bids shall be solicited by the publication of a non public invitation notice, indicating that a local authority official interested in biding may obtain the bidding packages from the department responsible for purchasing and supplies.

(8) A request for approval of a disposal method by a local authority shall be made to the Adjudication Committee using FORM SF 012 set out in the Schedule.

(9) The minimum advertising period shall be four working days.

(10) Bidding packages shall be drafted in accordance with the provisions of these Regulations.

(11) Bidding packages under this regulation shall not be sold.

(12) The minimum bidding period shall be 10 working days.

(13) A local authority shall require local authority officials to submit sealed, written bids.

(14) Evaluation shall be based on price only.

(15) Notwithstanding the provisions of subregulation (14), the Evaluation Committee shall also consult the local authority’s register of sales to local authority officials, prior to recommending award of contract, to verify that the best evaluated bidder is not purchasing the asset for business or commercial use, or is a highly repetitive bidder.

(16) Where the best evaluated bidder is judged to be purchasing the asset for business or commercial use, the Evaluation Committee shall report their findings to the Adjudication Committee and undertake the same check on the second best evaluated bidder.

(17) Contract award shall be by a decision of the Adjudication Committee in response to a recommendation from the Evaluation Committee.

(18) Contract placement shall be by issue of a contract document to the successful bidder.

(19) The department responsible for inventory and assets management shall forward to the Adjudication Committee, within seven days of the contract award, a copy of—

(a) all bids received;

(b) the evaluation report; and

(20) A local authority shall—

(a) maintain a register of all sales to local authority officials, which shall include for each contract at least—

(i) the name of the official,

(ii) the date of the disposal contract,

(iii) the type of asset sold,

(iv) the number of items bought, and

(v) the unit costs and the total cost.

(b) produce an annual report on sale to local authority officials detailing the required data.

139. Direct negotiation

(1) A direct negotiation may be used where—

(a) the market is limited and a single buyer who is willing to pay the reserve price has been identified;

(b) national security, public interest, legal or human rights issues or environmental considerations are served by selling to a particular company, group or individual;

(c) a potential buyer is the tenant, occupier or user of the asset at the time the decision to dispose of the asset is made, and it would be reasonable to give that person or body first option to buy the asset at market rate; or

(d) assets are located on a potential buyer’s premises on a hire or free-use basis and it would be reasonable to give that person or body first option to buy the assets at market rates.

(2) The Adjudication Committee shall approve a detailed justification for the use of the direct negotiation prior to the commencement of disposal proceedings.

(3) A valuation shall always be obtained where an asset is to be disposed of through direct negotiation.

(4) A bid shall be solicited through the issue of a written bidding package.

(5) There shall be no minimum bidding period.

(6) The local authority shall require the bidder to submit a sealed, written bid.

(7) Evaluation based on price only shall be the preferred evaluation methodology.

(8) Evaluation based on price and other factors may be used.

(9) Post-bid negotiations may be undertaken in accordance with provisions of these Regulations.

(10) Contract award shall be by a decision of the Adjudication Committee, in response to a recommendation from the Evaluation Committee.

(11) Contract placement shall be by issue of a contract document.

140. Trade-in

(1) Trade-in may be used where the trade-in of surplus assets to offset the purchase price of new items provides a convenient, economic and efficient way to upgrade equipment

(2) Notwithstanding the provisions of subregulation (1), trade-in shall not be used where it would prevent the operation of open and fair competition or reduce value for money in the procurement process.

(3) Where factors other than price need to be taken into account in the disposal process, trade-in shall not be used.

(4) A valuation shall always be obtained where an asset is to be disposed of through trade-in.

(5) Under trade-in, the disposal process shall be an integral part of the relevant procurement process and shall follow the procurement rules and the appropriate procurement method in these Regulations.

(6) The estimated trade-in value shall not be deducted from the estimated value of the procurement in selecting the appropriate procurement method.

(7) Approval shall be obtained from the Adjudication Committee to include the trade-in requirement in the procurement requirement prior to the commencement of the procurement proceedings.

(8) The bidding packages and the bid notice shall clearly state that the procurement involves a trade-in arrangement.

(9) The bidding packages shall be drafted using the appropriate procurement document issued by the competent Authority, but shall also include the relevant information.

(10) The advertisement of the opportunity, issue of solicitation documents, bidding period and receipt and opening of bids shall be in accordance with the relevant procurement rules.

(11) The evaluation shall follow the appropriate methodology for the procurement requirement.

(12) The trade-in value offered for the asset shall be included in the financial comparison only in the manner stated in the bidding packages.

(13) The way in which trade-in offers have been evaluated shall be clearly stated in the evaluation report.

(14) Negotiations may be permitted in accordance with the relevant rules on procurement.

(15) Award of contract shall be in accordance with the relevant rules on procurement.

(16) The contract document shall use the appropriate procurement document issued by the Competent Authority but shall also include the relevant information.

(17) Responsibility for the procurement contract shall be that of the contract manager and the disposal element shall be the responsibility of the department charged with inventory and assets management, and where separate staff members are responsible for each element, they shall work together as and when appropriate.

141. Transfer to another local authority

(1) Transfer to another local authority may be used where another local authority is able to make further use of the asset.

(2) The cost shall be agreed between the two local authorities.

(3) The agreement mentioned in subregulation (2) shall include—

(a) the cost to be paid by the recipient local authority;

(b) any subsidiary, linked assets to be included in or excluded from the transfer;

(d) responsibility for transporting the asset;

(e) the handover procedure and any documentation to be transferred;

(f) the mechanism and date for payment of any costs; and

(g) who is responsible for any legal obligations linked to the asset.

(4) Transfer may be at no cost, if it is uneconomic to charge for the asset.

(5) Submissions to the Adjudication Committee in respect of transfer to another local authority shall be made using FORMS SF 013 (1) – 013 (2) set out in the Schedule.

(6) The arrangements for the transfer to another local authority shall be confirmed in writing using FORM SF 013 (3) set out in the Schedule, and shall be approved and signed by the Accounting Officers of both entities.

(7) The recipient local authority shall issue an authorised receipt for the asset to the originating local authority.

142. Conversion or classification into another form

(1) Conversion or classification into another form may be used—

(a) on grounds of national security or public interest, legal or human rights issues or environmental considerations; or

(b) where the asset has no residual value in its current form, but some sale value can be obtained through conversion or classification into another form.

(2) Submissions to the Adjudication Committee in respect of conversion or classification of assets into another form shall be made using FORM SF 014 (1) set out in the Schedule.

(3) Where conversion or classification into another form is used, the local authority shall identify the department or an appropriate provider to undertake the conversion or classification.

(4) Approval shall be obtained from the Accounting Officer, prior to the commencement of the disposal proceedings using FORM SF 014 (1) set out in the Schedule.

(5) Documentary evidence of the conversion or classification shall be obtained from the department or provider using FORM SF 014 (2) set out in the Schedule and shall be kept as part of the record of disposal proceedings.

143. Destruction of assets

(1) Destruction of assets is the least favoured method of disposal, but may be used—

(a) on grounds of national security, or public interest, health and safety, legal or human rights issues or environmental considerations; or

(b) where the asset has no residual value and it cannot be transferred to another local authority or converted or classified into another form with any value.

(2) Submissions to the Adjudication Committee in respect of destruction of assets shall be made using FORM SF 015(1) set out in the Schedule.

(3) Where destruction of assets is used, a local authority shall either—

(a) undertake the destruction itself; or

(b) identify the department or an appropriate provider to undertake the destruction.

(4) The method of destruction shall be appropriate to—

(a) the asset being disposed of; and

(b) the circumstances giving rise to the destruction, including any grounds of national security or public interest, health and safety, legal or human rights issues or environmental considerations.

(5) Where a local authority needs to dispose of perishable items using the destruction of assets method on a regular basis, the Adjudication Committee—

(a) may give a running approval, fixed for a period not exceeding a year, to conduct all such disposals without further submissions to the Adjudication Committee over the period it has authorised; and

(b) shall require a monthly statement of such disposal detailing the—

(i) group of items destroyed by entities,

(ii) value of each group items destroyed,

(iii) date and place of such destruction, and

(iv) certificate of destruction by the responsible officers.

(6) Approval for destruction under this section shall be obtained from the Accounting Officer, prior to the destruction being undertaken using FORM SF 015 (2) set out in the Schedule.

144. Valuation

(1) A local authority shall obtain two valuations of the assets prior to the commencement of a disposal proceeding, as follows—

(a) where so required by law, a first valuation shall be obtained from the Competent Authority and a second independent, market-based valuation shall be obtained from a certified and licensed provider in good standing; and

(b) where there is no legal requirement concerning valuations, two independent valuations shall be obtained from appropriate authorities or providers.

(2) The two valuations shall be confidential and the identity and recommendations of each valuer shall not be revealed to the other.

(3) Notwithstanding the provisions of subregulation (1), no valuation of the assets shall be required where the cost of the valuation is likely to be in excess of the money expected to be realised through the disposal process.

(4) Where the valuations are within a range specified in the guidelines, a local authority shall use an average of the two valuations to determine a reserve price for the asset, which shall be the minimum sale price of the asset subject to these Regulations.

(5) Where the valuations differ by more than the range specified in the guidelines, both valuers shall be informed that their valuation is significantly different to the other valuation, but without specifying the alternative figure, and asked to reconsider their valuation.

(6) Where revised valuations are submitted, which are within a range specified in the guidelines, the local authority shall proceed to set a reserve price.

(7) Where the valuers confirm their original valuation, or the revised valuations still differ by more than the range specified in the guidelines, a third independent valuation shall be obtained.

(8) Where a third valuation is obtained, the local authority shall recommend a reserve price, taking into account all three valuations and the range of variation between them.

145. Description of assets

(1) All bidding packages or notices, and any additional information made available to prospective bidders, shall specify that the assets are sold on an “as is, where is” basis and shall disclaim all further liability after sale.

(2) Any additional information, such as an auctioneer’s catalogue, shall be for information purposes only and shall not be considered the bidding packages.

(3) Notwithstanding the provisions of subregulation (1), a local authority shall include a full description of the assets to be disposed of and shall ensure that the information is accurate and not misleading.

(4) The description of the asset must, where appropriate, address the risk and cost associated with the dismantling and removal of assets upon conclusion of the disposal proceedings.

(5) A warranty shall not be offered on the assets.

(6) Notwithstanding the provisions of subregulation (5), a local authority may, in exceptional circumstances, offer a warranty on assets, where the increase in the price received for the assets is likely to be greater than any costs associated with providing the warranty.

146. Solicitation of bids

Bids shall be solicited through either—

(a) a public invitation notice or notification of auction;

(b) a bidding package;

(d) discussions with another local authority;

(e) inclusion in the bidding packages for a procurement requirement, as a trade-in;

(f) discussions with a third party responsible for conversion, reclassification or destruction; or

(g) a combination of the provisions of all the above.

147. Bidding packages for disposal

(1) Bidding packages shall be drafted using the appropriate document FORMS SF 016 – SF 026 set out in the Schedule and shall include—

(a) a description of the asset or assets to be disposed of;

(b) a statement that the asset is sold on an “as is, where is” basis or any alternative basis for sale;

(d) whether any bid security is required;

(e) the deadline, location and method for submission of bids;

(f) the arrangements for any public bid opening;

(g) any qualification requirements to be met by bidders;

(h) the method for evaluating bids and awarding a contract;

(i) any conditions of sale;

(j) the requirements for payment of the sale price and handing over arrangements;

(k) a statement confirming that the risk and cost of dismantling and removal of the asset shall be the responsibility of the successful bidder, or other arrangements; and

(l) details of any reservations or preference scheme in operation.

(2) Bidding packages may be sold and the cost of the document shall be calculated to cover only the recovery of costs of preparing and issuing the document.

148. Inspection of assets

(1) A local authority shall ensure that potential bidders are offered reasonable access to inspect the assets before the date or deadline for bidding.

(2) Arrangements for the inspection of the assets shall be included in the invitation notice or bidding packages, where appropriate.

149. Evaluation under the disposal process

(1) The evaluation of bids shall be either—

(a) based on price only; or

(b) based on price and other factors subject to subregulation (3).

(2) The evaluation of bids based on price only shall be the preferred evaluation methodology.

(3) Additional factors may be taken into consideration in the evaluation of bids, where—

(a) there are end-use restrictions;

(b) there are export restrictions ; or

(4) The factors referred to in subregulation (3) may include, but are not limited to—

(a) nationality, under a reservation scheme or a preference scheme;

(b) the environmental impact;

(c) risks or conditions associated with health and safety, legal or human rights issues, national security or public interests;

(d) the need to maintain an asset within the country or a given district;

(e) the need to maintain an asset in working order or to maintain accessibility for the public; and

(f) any other performance conditions and means of monitoring compliance with such conditions.

150. Rebidding due to identical bids

(1) Where written bids have been requested and the highest priced bid has been submitted by more than one bidder, a local authority shall arrange a re-bidding procedure, where the bidders who submitted identically priced bids are invited to submit a revised bid.

(2) A bidder, other than those who submitted the identical highest priced bids, shall not be permitted to submit a revised bid or participate in the re-bidding procedure in any way.

(3) A revised bid shall contain a revised price only and bidders shall not be permitted to change the terms and conditions, technical details, documentation or any other aspect of their original bid, other than the price, in any way.

(4) The revised bid shall be submitted in writing and sealed, in the same way as the original bid.

(5) The bidders shall be given a reasonable period of time prior to the deadline for submission of their revised bid.

(6) Where evaluation is based on price only in accordance with these Regulations and it is reasonable to conduct and conclude the evaluation immediately in the presence of bidders at a public bid opening, a local authority may, if the bidders concerned so agree, conduct the re-bidding procedure immediately.

(7) The bid opening procedure for the revised bids shall be the same as for the original bids.

(8) The evaluation shall be conducted in the same manner as the original evaluation, except that the prices contained in the revised bids shall replace the original prices.

(9) Notwithstanding the provisions of subregulation (8), any second bid which contains a price lower than the original bid price shall be rejected and the original bid shall remain valid.

(10) Where the identical highest priced bids are received during a re-bidding procedure, a further re-bidding procedure shall be held in accordance with these Regulations.

(11) Where it is subsequently discovered that any error was made in the original evaluation including, but not limited to, errors in correcting arithmetic errors or in the application of an exchange rate, and that bidders had not submitted identical highest priced bids, the re-bidding procedure shall be declared null and void and the revised bids shall not be taken into consideration.

151. Evaluation based on price only

(1) Where the evaluation is based on price only, the contract shall be awarded to the bidder with the highest price.

(2) Where written bids are received, the Evaluation Committee shall—

(a) correct any arithmetic errors in accordance with these regulations.

(b) convert the bids to a common currency; and

(3) Where it is reasonable to conduct and conclude the evaluation immediately in the presence of bidders at a public bid opening, the local authority may do so for the purpose of establishing whether the highest priced bid has been submitted by more than one bidder and conduct a re-bidding procedure.

(4) Notwithstanding the provisions of subregulation (3), a local authority shall not declare the best evaluated bid or contract award at the bid opening or any re-bidding procedure.

(5) Contract award shall be recommended to the highest price, subject to any reservations in regard to the valuation or reserve price.

152. Evaluation based on price and other factors

(1) Where the evaluation is based on price and other factors, the eligibility requirements and evaluation criteria and methodology shall be stated in the bidding packages.

(2) Eligibility requirements shall be evaluated on a pass or fail basis.

(3) A local authority may include nationality as an eligibility requirement.

(4) Compliance with other evaluation criteria shall be evaluated on a pass or fail basis wherever possible.

(5) Notwithstanding the provisions of subregulation (4), compliance with other evaluation criteria may include an evaluation of the relative merits of each bid in exceptional circumstances.

(6) The use of other evaluation criteria shall be fully justified, and approved by the Adjudication Committee, prior to the issue of the bidding documentation.

(7) The Evaluation Committee shall use the following methodology—

(a) a preliminary examination to assess the eligibility of bidders on a pass or fail basis, rejecting any bidders who fail to meet the eligibility criteria;

(b) an application of any other evaluation factors in the manner stated in the bidding packages; and

(i) correct any arithmetic errors;

(ii) convert the bids to a common currency if necessary; and

(iii) compare the bid price with the valuation of the asset or reserve price where appropriate.

(8) The recommendation for contract award shall be in accordance with the methodology in the bidding packages.

(9) A contract award shall be recommended to the bidder with the highest price, which meets the eligibility requirements and passes the evaluation criteria, subject to any reservations in regard to the valuation or reserve price.

(10) Notwithstanding the provisions of subregulation (8), where the evaluation criteria include an evaluation of the relative merits of each bid in accordance with subregulation (5), contract award shall be recommended to the bidder with the best evaluated bid, in accordance with the methodology stated in the solicitation document.

153. Negotiations

(1) Under public bidding—

(a) negotiations may relate to the conditions of sale, where evaluation is based on factors other than price; and

(b) negotiations shall not relate to the price of the bid.

(2) Under direct negotiation, negotiations may relate to—

(a) the conditions of sale, where evaluation is based on factors other than price; and

(b) the price of the bid.

(3) Negotiations are not permitted until after the Adjudication Committee has approved the Evaluation Committee’s recommendation—

(a) of the best evaluated bidder and the need to hold negotiations in the case of public bidders; or

(b) that the single bidder should be considered for contract award, subject to negotiations in the case of direct negotiation.

(4) Negotiations shall only be held with the best evaluated bidder.

(5) The plan shall—

(a) detail the issues to be negotiated and the objectives to be achieved; and

(b) quantify the objectives and set maximum and minimum negotiating parameters for the negotiation team.

(6) The Adjudication Committee shall approve the negotiation plan, and the membership of the negotiation team drawn from the Evaluation Committee or other officials of the local authority, prior to any negotiations taking place.

(7) Negotiations shall be conducted by a negotiation team, which shall not commit the local authority to any proposed arrangements or agreements, but shall seek the approval of the Adjudication Committee prior to confirming any agreement reached.

(8) The negotiation team shall produce minutes of the meeting and shall obtain the bidder’s written agreement that they are a true and accurate record of the negotiations held.

(9) The negotiation team shall report to the Adjudication Committee on the results of the negotiations, stating whether the objectives of the negotiation plan have been substantially achieved and submitting minutes of the meeting.

(10) The negotiation team shall submit a recommendation to the Adjudication Committee to either—

(a) proceed with contract award to the recommended bidder, incorporating the agreements reached during negotiations;

(b) revise the negotiation objectives and hold further negotiations; or

(11) Where the negotiation team recommends rejection of the bidder, they may also, where appropriate, recommend inviting—

(a) the next ranked bidder for negotiations in the case of public bidding; or

(b) a new bidder to submit a bid in the case of direct negotiations.

(12) The Adjudication Committee may—

(a) approve the recommendations;

(b) request further negotiations on specific points;

(d) cancel the negotiations in their entirety.

(13) The results of any approved negotiations shall be incorporated into the contract document.

(14) Where negotiations are commenced with the next ranked bidder or a new bid is invited, the local authority shall not reopen earlier negotiations.

(15) The original bidder shall be informed of the reasons for termination of the negotiations.

154. Failure to reach the reserved price

(1) Where the best evaluated bid is less than the reserve price, the Adjudication Committee may decide to—

(a) obtain a further valuation from an independent source;

(b) negotiate the price with the bidder, under the direct negotiation only;

(d) use an alternative method of disposal, which is likely to obtain a higher price; or

(e) sell the asset or assets at the reduced price.

(2) In deciding on the appropriate action, the Adjudication Committee shall take into consideration—

(a) the difference between the best evaluated bid and the valuation or reserve price;

(b) the likely costs of the action; and

155. Award of contract for disposal

(1) Award of contract shall be by either—

(a) a declaration of the successful bidder at the time of bidding in the case of public auction; or

(b) a decision of the Adjudication Committee for all other methods of disposal.

(2) Where contract award is by a decision of the Adjudication Committee, contract placement shall be by the issue of a contract document to the successful bidder.

(3) The contract document shall be as specified in the bidding packages and use the appropriate format.

(4) Communication in any form by letter, fax, telex or email, that would bind the local authority to a contract with the provider, shall not be permitted prior to approval of the award of contract by the Adjudication Committee.

(5) The contract document shall include—

(a) the price to be paid by the successful bidder;

(b) any subsidiary, linked assets to be included in or excluded from the sale;

(d) responsibility for transporting the asset;

(e) the handover procedure and any documentation to be transferred;

(f) the mechanism and date for payment of the contract price; and

(g) who is responsible for any legal obligations linked to the asset.

(6) All contract awards, with the exception of those under public auction, shall be displayed within one working day of the contract award on the local authority’s—

(a) notice board; and

(b) website.

156. Signature of contracts

The Accounting Officer or any officer authorised by the Accounting Officer, in writing, shall sign all contracts made under these Regulations.

SCHEDULE

FORM SF 001
PROCUREMENT COMMENCEMENT FORM

(reg. 26)

FORM SF 002
FORMAT AND CONTENT OF BID INVITATION NOTICE

(reg. 40(1))

Name of Local Authority: _________________________ Date: _______________________

Bid Invitation Notice (Bid Reference Number) ______________________________________

2. The (insert name of Local Authority) intends to finance or undertake the procurement of
(insert description of works/ services/supplies to be procured).

3. The (insert name of Local Authority) invites sealed bids from eligible bidders (grades/codes) for the supply and delivery/provision of the above described works/services/supplies.

4. Bidding will be conducted in accordance with the competitive bidding procedures contained in the Regulations and is open to all eligible bidders.

5. Interested eligible bidders may obtain further information from (insert name of Local Authority) and inspect the bidding documents at the address given below, (insert address at end of document) from (insert office hours).

6. Bidding documents may be purchased by interested bidders from the address below upon payment of a non-refundable fee of (insert amount in local currency). The method of payment will be (insert method of payment).

Bids must be delivered to the address below on or before (insert time and date).

7. (If appropriate, include the following: All bids must be accompanied by a bid security of
(insert amount in local currency).

8. Late bids shall be rejected. Bids will be opened in the presence of the bidders’ representatives who choose to attend at the address below at (insert time and date).

9. (Insert name of Project Manager and/ or name of Head of Department) on behalf of the Chief Executive. (Insert postal address and /or physical address)(Insert telephone and facsimile number, indicate country and city code).

FORM SF 003
RECORD OF RECEIPT OF OPEN BIDS/RESTRICTED BIDS
IRFQ/RFP/SHORTLIST/PREQUALIFICATION AND ADDENDA THERETO

(reg. 41)

FORM 004 (1)

(reg. 42)

SUBMISSION TO ADJUDICATION COMMITTEE: DIRECT PROCUREMENT
SECTION A: REQUEST FOR APPROVAL OF PROCUREMENT METHOD

FORM 004 (2)

SUBMISSION TO ADJUDICATION COMMITTEE: DIRECT PROCUREMENT

SECTION B: REQUEST FOR APPROVAL OF BIDDING PACKAGES AND CHOICE OF PROVIDER

FORM 004 (3)

SUBMISSION TO ADJUDICATION COMMITTEE: DIRECT PROCUREMENT

SECTION F: REQUEST FOR APPROVAL OF CONTRACT DOCUMENT

FORM 004 (4)

SUBMISSION TO ADJUDICATION COMMITTEE: DIRECT PROCUREMENT

SECTION G: REQUEST FOR APPROVAL OF CONTRACT AMENDMENT

FORM SF 005 (1)
RECORD OF PRE-BID MEETING AND ATTENDANCE

(regs. 55(3), 56(6), 59)

FORM SF 005 (2)
RECORD OF ATTENDANCE OF PRE-BID MEETING

FORM SF 006
EVALUATION REPORT FOR SERVICES (QUALITY BASED SELECTION)

(reg. 73)

FORM SF 006
EVALUATION REPORT FOR SERVICES (QUALITY BASED SELECTION)

FORM SF 006
TABLE 1 – PRELIMINARY EXAMINATION AND ASSESSMENT OF ELIGIBILITY

FORM SF 006
TABLE 3 – SUMMARY OF DETAILED TECHNICAL EVALUATION OF BID

FORM SF 006
TABLE 4 – SUMMARY OF DETAILED TECHNICAL EVALUATION OF BID: ONE FOR EACH BIDDER

FORM SF 006
TABLE 5 – INDIVIDUAL DETAILED TECHNICAL EVALUATION OF BID: ONE FOR EACH BIDDER

FORM SF 006
TABLE 6 – SUMMARY OF FINANCIAL COMPARISON

FORM SF 007
POST-QUALIFICATION EVALUATION REPORT

(regs. 77, 78(5))

FORM SF 007
POST-QUALIFICATION EVALUATION REPORT

FORM SF 007
SUMMARY OF POST-QUALIFICATION EVALUATION

FORM SF 008
NOTICE OF BEST EVALUATED BIDDER
(for Procurement and Disposal Notice Board)

(reg. 81(1))

FORM SF 009
DISPOSAL COMMENCEMENT REQUISITION

(reg. 134(2))

FORM SF 009
RECORD OF ISSUE OF MICRO PROCUREMENT REQUEST AND RESPONSES

FORM SF 010 (1)
RECORD OF ISSUE OF BID DOCUMENTS
[TO BE USED FOR METHODS OF SALE TO THE PUBLIC]

(reg. 136)

NOTICE OF PUBLIC AUCTION

FORM SF 010 (2)
RECORD OF INFORMATION REQUIRED AND PROCEDURES TO BE FOLLOWED FOR DISPOSAL BY PUBLIC AUCTION

FORM SF 010 (3)
TABLE 1 – RECORD OF PUBLIC AUCTION

FORM SF 010 (4)
NOTICE OF INVITATION TO BID INVITATION FOR BIDS FOR SALE TO THE PUBLIC

(reg. 137(3))

FORM 011
NOTICE OF CONTRACT AWARD FOR DISPOSAL
(for procurement and Disposal Notice Board)

(reg. 137(12))

FORM SF 012(1)
SUBMISSION TO ADJUDICATION COMMITTEE: SALE TO LOCAL AUTHORITIES OFFICIALS REQUEST FOR APPROVAL OF DISPOSAL METHOD

(reg. 138(8))

FORM SF 012 (2)
SUBMISSION TO ADJUDICATION COMMITTEE: SALE TO LOCAL AUTHORITIES OFFICIALS REQUEST FOR APPROVAL OF EVALUATION REPORT AND RECOMMENDATIONS AWARD

FORM SF 012 (3)
TABLE 1 – SUMMARY OF EVALUATION

FORM 013 (1)
SUBMISSION TO ADJUDICATION COMMITTEE: DISPOSAL BY TRANSFER TO ANOTHER LOCAL AUTHORITY

(reg. 141(5))

FORM 013 (2)
SUBMISSION TO ADJUDICATION COMMITTEE: DISPOSAL BY TRANSFER TO ANOTHER LOCAL AUTHORITY

FORM 013 (3)
AGREEMENT FOR THE TRANSFER OF AN ASSET TO ANOTHER LOCAL AUTHORITY

(reg. 141)

FORM SF 014 (1)
SUBMISSION TO ADJUDICATION COMMITTEE: DISPOSAL BY CONVERSION OR CLASSIFICATION

(reg. 142)

FORM SF 014 (2)
CERTIFICATE OF CONVERSION OR CLASSIFICATION INTO ANOTHER FORM

FORM SF 015 (1)
SUBMISSION TO ADJUDICATION COMMITTEE: DISPOSAL BY DESTRUCTION REQUEST FOR APPROVAL OF DISPOSAL METHOD

(reg. 143)

FORM SF 015 (2)
CERTIFICATE OF DESTRUCTION

(reg. 143)

FORM SF 016

TABLE 1 – PRELIMINARY EXAMINATION AND ASSESSMENT OF ELIGIBILITY

(reg. 147)

TABLE 2 – SUMMARY OF EVALUATION OF OTHER (NON-PRICE) CRITERIA FACTORS

TABLE 3 – EVALUATION OF PRICE

TABLE 4 – SUMMARY OF RESULTS OF THE COMBINED EVALUATION (PRICE AND NON-PRICE)

FORM SF 017
REQUEST FOR APPROVAL OF CONTRACT AMENDMENT

(reg. 147)

SUBMISSION TO ADJUDICATION COMMITTEE: RESTRICTED BIDDING/SHORTLIST

FORM SF 018
CONTRACT VARIATION ORDER NO……….

(reg. 147)

FORM SF 019
CONTRACTOR’S APPLICATION FOR EXTENSION OF CONTRACT PERIOD

(reg. 147)

FORM SF 020
DEPARTMENTAL RECOMMENDATION ON CONTRACTOR’S APPLICATION FOR EXTENSION OF CONTRACT PERIOD FOR SUBMISSION TO ADJUDICATION COMMITTEE

(reg. 147)

FORM SF 021
EXTENSION OF CONTRACT PERIOD CERTIFICATE

(reg. 147)

FORM SF 022
CERTIFICATE OF ACCEPTANCE

(reg. 147)

FORM SF 023
DEFECTS LIABILITY CERTIFICATE

(reg. 147)

FORM SF 024
FINAL ACCOUNTS

(reg. 147)

FORM SF 025
MONTHLY AND ANNUAL CONSOLIDATED DEPARTMENTAL REPORT ON MICRO PROCUREMENT*

(reg. 147)

FORM SF 026
ANNUAL REPORT ON PROCUREMENT

(reg. 147)

FORM SF 026
ANNUAL REPORT ON PROCUREMENT