PUBLIC PROCUREMENT: SUBSIDIARY LEGISLATION
INDEX TO SUBSIDIARY LEGISLATION
Public Procurement and Asset Disposal (Independent Complaints Review Committee) Regulations
Public Procurement and Asset Disposal Regulations
Public Procurement and Asset Disposal (Retroactive Approvals) Order
Public Procurement and Asset Disposal (Suspension and De-listing of Contractors) Regulations
Public Procurement Regulations
Public Procurement (National Electronic Procurement) Regulations
Public Procurement (Tribunal) Regulations
PUBLIC PROCUREMENT AND ASSET DISPOSAL REGULATIONS
(section 130)
(24th February, 2006)
ARRANGEMENT OF REGULATIONS
REGULATION
PART I
Preliminary (regs 1-4)
1. Citation
2. Interpretation
3. Application of Regulations
4. International obligations
PART II
Procuring Entities (regs 5-19)
5. Composition of procuring entity
6. Powers of a procuring entity
7. Accounting officer
8. Composition of Ministerial Committee
9. Functions of Ministerial Committee
10. Meetings of Ministerial Committee
11. Composition of procurement unit
12. Functions of procurement unit
13. Powers of procurement unit
14. Procedure in case of disagreement
15. Maintenance of independence
16. Delegation of powers by the accounting officer
17. Third party procurement
18. Records of procuring entity
19. Procedure for Defence Force, Police Service etc.,
PART III
Public Procurement Rules and Process (regs 20-39)
20. Preference and reservation
21. Records of procurement
22. Communication
23. Emergency procurement
24. Splitting of procuring requirements
25. Aggregation of requirements
26. Framework contracts
27. Initiation of procurement requirements and confirmation of funding
28. Pre-qualification
29. Statement of requirements
30. Bidding documents
31. Pre-bid meetings
32. Selection of bidders
33. Bidding period
34. Clarification of bidding documents
35. Format of bid document
36. Bid submission methods
37. Withdrawal of bids
38. Bid receipt and openings
39. Minimum qualification
PART IV
Evaluation Processes (regs 40-53)
40. Evaluation
41. Change to bid details
42. Choice of evaluation method
43. Evaluation by quality and cost based selection
44. Evaluation by quality based selection
45. Evaluation by fixed budget selection
46. Evaluation by least cost selection – supplies and works
47. Evaluation by least cost selection – services
48. Evaluation by qualification selection
49. Amendment of bid details
50. Clarification of bids received
51. Negotiations for open, restricted and quotation biddings
52. Negotiations under direct procurement method
53. Award of contracts
53A. Tender cancellations
PART V
Choice of Procurement Methods (regs 54-61)
54. Choice of procurement methods
55. Open domestic bidding
56. Open international bidding
57. Restricted international bidding
58. Restricted domestic bidding
59. Quotations proposals procurement
60. Micro procurement
61. Direct procurement
PART VI
Procurement of Supplies (regs 62-68)
62. Policy of standardisation
63. Statement of requirements for procurement of supplies
64. Bidding documents
65. Pre-qualification for supplies
66. Least cost selection – supplies evaluation
67. Delivery terms
68. Inspection
PART VII
Procurement of Works (regs 69-72)
69. Statement of requirements for procurement of works
70. Drafting of bidding documents for works
71. Pre-qualification for works
72. Evaluation methods for works
PART VIII
Procurement of Services (regs 73-76)
73. Statement of requirements for procurement of services
74. Drafting of bidding documents for services
75. Pre-qualification for services
76. Evaluation methods for services
PART IX
Administrative Review (regs 77-79)
77. Claim for compensation for contravention of legal provisions
78. Procedure for claiming compensation
79. Procuring entity to be notified of complaint
PART X
General (regs 80-97)
80. Contract pricing
81. Price adjustment
82. Payment terms
83. Payment method
84. Payment structure
85. Advance payments
86. Interim or stage payments
87. Retained payments
88. Payment security
89. Payment documents
90. Payment period
91. Payment and payment delays
92. Currency for payment and limitations thereon
93. Export and import licences
94. Insurance and indemnity
95. Contract amendments
96. Variation or change order to contract
97. Contract amendments, variations or change orders
PART XI
Disposal of assets (regs 97-122)
98. Application of rules on disposal of public assets
99. Records of disposal of public assets
100. Disposal planning
101. Initiation of disposal requirements and approval for disposal
102. Selection of disposal method
103. Valuations
104. Description of assets
105. Bidding documents
106. Advertisement and bidding periods
107. Inspection of assets
108. Format of bids
109. Submission of bids
110. Withdrawal of bids
111. Bid closing process
112. Bid opening process
113. Evaluation methodology
114. Re-bidding due to identical bids
115. Evaluation based on price only
116. Evaluation based on price and other factors
117. Evaluation teams and reports
118. Negotiations under competitive methods
119. Negotiations under direct negotiation
120. Failure to reach the reserve price
121. Award of contract
122. Contract placement
PART XII
Methods for disposal of public assets (regs 123-138)
123. Selection of disposal method
124. Conditions for use of public auction
125. Conditions for use of public bidding
126. Conditions for use of direct negotiations
127. Conditions for use of trade-ins
128. Conditions for use of disposal by transfer to another procuring and disposing entity
129. Conditions for use of disposal by conversion or classification of assets into another form
130. Conditions for use of disposal by destruction of assets
131. Public auction
132. Appointment of an auctioneer
133. Public bidding
134. Direct negotiations
135. Trade-in
136. Transfer to another procuring and disposing entity
137. Destruction of assets
First Schedule
Second Schedule
Third Schedule
Fourth Schedule
Fifth Schedule
S.I. 12, 2006,
S.I. 28, 2013,
S.I. 68, 2020.
PART I
Preliminary (regs 1-4)
These Regulations may be cited as the Public Procurement and Asset Disposal Regulations.
In these Regulations, unless the context otherwise requires—
“accounting officer” means the designated accounting officer of a procuring and disposing entity or, where none has been so designated, the Permanent Secretary of a procuring and disposing entity;
“award” means a decision by the Board, any of its committees or any other subsidiary body of a procuring entity to which the Board may delegate powers of adjudication and award within specified financial ceilings, to determine the successful bidder;
“best practices” means 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;
“bid submission methods” means documents containing instructions on the method of bid submission;
“Contracts Committee” means the Ministerial Tender Committee or the District Tender Committee;
“disposal process” means the successive stages in the disposal cycle, including planning, choice of procedure, measures to solicit offers from bidders, examination and evaluation of such offers and award of contract;
“dual envelope method” means a one stage-two envelope method of bid submission in which a bid is submitted in an outer sealed envelope, containing two separately sealed and labelled envelopes, marked and containing separate technical and financial proposals which are opened on different dates, in separate bid openings;
“direct procurement method” means a sole source procurement method for requirements where exceptional circumstances prevent the use of competition;
“emergency procurement” means a procurement under circumstances which are urgent, unforeseeable and not caused by any dilatory conduct of the procuring entity;
“fixed budget selection” means selection of a bidder with the best technical bid who is within the budget;
“foreign provider” means a provider who is not a citizen of Botswana and whose operations are not based in Botswana;
“framework contracts” mean a contractual arrangement which allows the procuring entity 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” mean any advice given by the Board through any circular that may be issued to procuring and disposing entities in accordance with section 28 of the Act;
“INCOTERMS” means the international commercial terms, issued by the International Chamber of Commerce;
“least cost selection services” means the cost selection evaluation method set out in Part V of the Fourth Schedule;
“least cost selection-supplies and works” means the cost selection evaluation method set out in Part IV of the Fourth Schedule;
“local provider” means a company registered in Botswana irrespective of whether or not it is wholly owned and controlled by citizens of Botswana;
“open international bidding” means a procurement or disposal method open to competition and participation by all providers through advertisement of the procurement or disposal opportunity and which specifically seeks to attract foreign providers;
“open domestic bidding” means a procurement or disposal method open to participation on equal terms by all providers through advertisement of the procurement or disposal opportunity in the Gazette and in a newspaper of wide circulation in Botswana;
“procurement activity” includes a disposal as defined under section 2 of the Act;
“procurement method” means the methods defined in Part V;
“procurement process” means the successive stages in the procurement cycle including planning, choice of procedure, measures to solicit offers from bidders, examination and evaluation of such offers, award of contract and contract management;
“provider” means a natural person or an incorporated body including a consultant, contractor or supplier, licensed by a competent authority to undertake business activities;
“quality and cost based selection” means a procurement method defined in regulation 76(2);
“quotation procurement method” commonly referred to as “proposal procurement method” means a simplified procurement and disposal method which compares price quotations or proposals obtained from a number of providers;
“responsive bid” means a bid which conforms to all the terms, conditions and requirements of the solicitation document without any material deviation, reservation or omission therefrom;
“single envelope submission method” means a one stage single envelope 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;
“standardisation policy” means a policy of standardisation approved by Cabinet through a Cabinet Directive;
“statement of requirements” means documents prepared by a procuring entity providing a correct and competitive description of the subject of the procurement for the purposes of creating fair and open competition; and
“third party procurement provider” means any provider of services to whom procurement or disposal functions of a procuring and disposing entity is contractually assigned.
(1) These Regulations shall apply to all public procurement and asset disposal, except procurement determined by the Board to require a different procurement procedure, for purposes of national security or any other reason the Board may think reasonable.
(2) Disputes regarding the applicability of the Act and these Regulations shall be submitted, in writing, with all supporting documentation, to the Board.
(3) The Board shall decide upon a dispute referred to it under subregulation (2) within 10 days.
(4) The Board shall, by notice published in the Gazette, periodically publish a list of the procuring entities which are subject to the Act and these Regulations.
(1) Where an international agreement requires a procuring entity to use an alternative procurement procedure, such entity shall apply to the Board for 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 Board shall consider and determine whether to approve the application made under subregulation (1), within 10 days of such application.
(3) The decision of the Board rendered in accordance with the provisions of subregulation (2) shall be final and shall not be capable of being reviewed by the Independent Committee.
PART II
Procuring Entities (regs 5-19)
5. Composition of procuring entity
A procuring entity shall be composed of—
(a) an accounting officer or his or her representative; and
(b) the Ministerial Committee; and
(c) a procurement unit established under regulation 11.
6. Powers of a procuring entity
A procuring entity shall be responsible for the management of all procurement activities within its jurisdiction in accordance with the provisions of the Act.
(1) The accounting officer shall, in considering persons for appointment to the Ministerial Committee, recommend to the Board the appointment of persons—
(a) at appropriate levels of decision making;
(b) from more than one discipline;
(c) from different departments; or
(d) with experience in public procurement.
(2) The accounting officer shall have overall responsibility for the execution of the procurement process in the procuring entity and, in particular, shall be responsible for—
(a) procurement planning;
(b) providing a certification confirming the availability of funds to support the procurement activities;
(c) investigating all complaints by providers;
(d) submitting copies of any complaint received and reports of the findings thereof, to the Independent Committee;
(e) ensuring that the implementation of the awarded contract is in accordance with the terms and conditions of the award; and
(f) executing the decisions of the Board.
(3) An accounting officer or any person authorised by him or her shall make a certification as to the availability of funds prior to any procurement activity and before the awarding of the contract.
(4) A certification confirming the availability of funds shall be in the standard form set out in the First Schedule.
8. Composition of Ministerial Committee
(1) Each Ministerial Committee shall be composed of—
(a) a Chairperson;
(b) a Vice-Chairperson;
(c) other members, not exceeding seven, appointed by the Board on the recommendation of the accounting officer, in writing; and
(d) a Secretary, who shall attend meetings, and participate in the deliberations, of the Ministerial Committee, but shall not have the right to vote;
(2) A Ministerial Committee may co-opt advisers to assist it in the discharge of its functions, but the co-opted members shall not vote.
(3) Membership of a Ministerial Committee shall not exceed nine persons.
(4) The accounting officer shall inform the Board of the composition of the Ministerial Committee and the qualifications of its members.
(5) Members of a Ministerial Committee shall be appointed with regard to their technical competence, skills mix and levels of skills required for the discharge of the functions of the Committee.
(6) The Board may, on the advice of the accounting officer, by notice published in the Gazette, amend the composition of a Ministerial Committee.
9. Functions of Ministerial Committee
(1) A Ministerial Committee shall be responsible for—
(a) ensuring compliance with the provisions of the Act and best practices in all procurements; and
(b) liaising directly with the Board on any matter within its jurisdiction.
(2) Without prejudice to the generality of the provisions of subregulation (1), a Ministerial Committee shall—
(a) …
(b) …
(c) preside over and manage public bid openings;
(d) …
(e) …
(f) propose the delegation of authority to a procurement unit; and
(g) provide overall guidance on procurement development within the procuring entity.
10. Meetings of Ministerial Committee
(1) Subject to the provisions of the Act and these Regulations, a Ministerial Committee shall regulate its own procedure.
(2) A Ministerial Committee shall meet at least once a month for the discharge of its functions.
(3) There shall preside at every meeting of a Ministerial Committee—
(a) the Chairperson;
(b) in the absence of the Chairperson, the Vice Chairperson; or
(c) in the absence of the Chairperson and the Vice Chairperson, such member as the members present shall elect from among themselves for the purpose of the meeting.
(4) The quorum at a meeting of a Ministerial Committee shall be four members.
(5) A decision of a Ministerial Committee on any matter shall be by a majority of the members present and voting at the meeting and, in the event of an equality of votes, the Chairperson shall have a casting vote in addition to his or her deliberate vote.
(6) A decision of a Ministerial Committee shall not be rendered invalid by reason only of a vacancy in the membership of the Ministerial Committee or by reason only that a person who was not entitled to sit as a member sat as such a member.
(7) The Secretary shall record the minutes of the proceedings of the Ministerial Committee, but shall not vote at any meeting of the Ministerial Committee.
(8) Where a member is present at a meeting of a Ministerial Committee at which any matter which is the subject of consideration, and in which matter the member has a direct or indirect interest in his or her private capacity, is to be discussed, he or she shall forthwith upon the commencement of the meeting disclose such interest to the Committee, and shall not take part in any consideration or discussion of, or vote on, any question with respect to that matter.
(9) A disclosure made under subsection (8) shall be recorded in the minutes of the meeting at which it is made.
(10) A member who contravenes the provisions of subregulation (8) shall be guilty of an offence.
11. Composition of procurement unit
The accounting officer shall cause to be established a procurement unit staffed at an appropriate level consisting of such number of members as the accounting officer may determine.
12. Functions of procurement unit
A procurement unit shall—
(a) manage all procurement and disposal activities of the procuring and disposing entity, except adjudication and award of contracts;
(b) implement the decisions of the Ministerial Committee;
(c) liaise directly with the Board on all matters pertaining to the Board;
(d) plan the procurement by the procuring entity;
(e) recommend procurement procedures to the procuring entity;
(f) check and prepare statements of requirements;
(g) prepare tender documents;
(h) maintain lists of suppliers;
(i) evaluate or manage the evaluation of bids;
(j) prepare contract documents;
(k) issue approved contract documents;
(l) administer and manage contracts once placed;
(m) arrange payments to contractors;
(n) maintain and archive records of procurement;
(o) prepare monthly reports for the Ministerial Committee;
(p) co-ordinate projects and liaise with the procuring entity’s departments about all other aspects of their procurement;
(q) act as a procurement coordinator for the user department of the procuring and disposing entity;
(r) liaise with the Secretary to the Ministerial Committee to ensure that submissions to the Ministerial Committee are correct and submitted on time;
(s) recommend procurement procedures to the Board or Ministerial Committee;
(t) recommend to the Board or Ministerial Committee the type of documents to be used for a procurement before the issuance of a solicitation document; and
(u) recommend technical, financial or combined technical and financial evaluation reports to the Board or Ministerial Committee for adjudication and award of contracts.
13. Powers of procurement unit
(1) In the discharge of its functions, a procurement unit may—
(a) nominate persons to evaluation committees for approval by the accounting officer;
(b) obtain such independent advice as may be necessary;
(c) ensure compliance with the provisions of the Act, Regulations and best practices;
(d) manage bid proposals and pre-qualification submissions and make recommendations to the Board or its committees;
(e) advertise tender opportunities;
(f) sell tender documents;
(g) issue tender clarifications; and
(h) receive tenders.
(2) A procurement unit shall co-ordinate submissions to the Ministerial Committee concerning its disposal and procurement needs as well as the needs of any user department.
14. Procedure in case of disagreement
(1) Where a procurement unit disagrees with the Ministerial 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 its disagreement and may—
(a) submit those reasons to the Ministerial Committee for review; and
(b) if the matter is not satisfactorily resolved within a period of five days following the decision of the Ministerial Committee, request an independent review on the matter, by the Board.
(2) A member of a procurement unit shall not, while he or she is a member of the procurement unit, sit in any Ministerial Committee.
15. Maintenance of independence
Accounting officers, procurement units and Ministerial Committees shall act independently in relation to their respective functions and powers.
16. Delegation of powers by the accounting officer
(1) An accounting officer may delegate the procurement function of a procuring entity to another procuring and disposing entity or to a third party procurement provider, which shall be based on—
(a) thresholds established by the Board and which shall be issued by the Board;
(b) the sub-division having the required number of personnel to allow it to set up the structures necessary to execute the procurement function as in the parent procuring entity; and
(c) the sub-division having the capacity to fulfil the recording, reporting and accountability requirements which the parent body is required to comply with.
(2) Notwithstanding the delegation referred to in subregulation (1), the accounting officer shall remain accountable for all decisions taken by the procuring entity.
(1) A procuring entity shall determine the need, in each particular case, to acquire third party procurement services in the discharge of its procurement functions.
(2) A procuring entity shall, in making an invitation for third party procurement services—
(a) request applications for the rendering of such services from among firms registered with the Board;
(b) follow the procedures laid down in the guidelines; and
(c) secure prior written assurance of the accounting officer that funds are available, to pay in full and on time for such services.
18. Records of procuring entity
(1) A procuring entity shall maintain records of its procurement proceedings for a period of seven years from the later date of any of the following—
(a) the decision to terminate the procurement action; or
(b) the contract award; or
(c) completion of the contract or the settlement of the dispute, whichever comes earlier, and thereafter for an additional year where a contract is ongoing or is challenged.
(2) The records of the procurement process of a Ministerial Committee shall be open for inspection by the Board during working hours.
19. Procedure for Defence Force, Police Service etc.,
(1) Procuring entities of the Defence Force, Police Service and other security organs of the State may conduct their procurement through an open or restricted list basis.
(2) Where the procuring entities referred to in subregulation (1) procure through restricted bidding, they shall—
(a) obtain prior written approval of the Board;
(b) first commit themselves to a progressive reduction in procurement through the restricted list; and
(c) obtain the consent of the Board to the procurement procedures that shall apply to each category of procurement activity on the restricted lists.
(3) Unless otherwise provided under the Act or these Regulations, the Defence Force, Police Service and other security organs of the State shall comply with the provisions of these Regulations.
PART III
Public Procurement Rules and Process (regs 20-39)
20. Preference and reservation
(1) Where an international agreement or preference policy is in place which contains provisions favourable to citizen and local providers, the Board or its committees shall bring the agreement or the policy to the attention of the providers and it shall cause full advantage to be taken by such providers of the opportunities contained in such provisions.
(2) Any agreements favourable to citizen and local providers shall be brought to the attention of such providers through a notice in a newspaper of wide circulation in Botswana, and information on the same shall be contained in the bidding documents.
(3) A procuring entity may decide to limit participation in a procurement activity to a category of providers, so as to attain—
(a) development of local or citizen capacity; or
(b) compliance with provisions in agreements requiring that part of the procurement contracts are subcontracted to such providers.
(4) When a procuring entity decides to restrict participation in a procurement proceeding on the basis of nationality, it shall include—
(a) a statement to that effect in either the bid document or pre-qualification notice, or in both; and
(b) information on how either the reservation or preference, 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
(c) such other preferences as the Government may determine.
(7) The Board may terminate a contract awarded where evidence is adduced to prove that the contract was awarded contrary to the requirements of this regulation with respect to citizen and local provider empowerment.
(1) All procurement records, where appropriate, shall contain the following documents—
(a) a request to initiate procurement proceedings;
(b) a copy of the published advertisement or shortlist;
(c) pre-qualification and bidding documents and any amendments or clarifications thereto;
(d) records of bid openings;
(e) copies of records of all bids evaluated and any clarification responses;
(f) an evaluation report;
(g) a contract document;
(h) all documents related to the contracts management, including, but not limited to, contract performance and payment, warranties, bank guarantees and any claims;
(i) minutes of any meetings related to the procurement, including negotiations;
(j) all correspondence between the procuring entity and bidders;
(k) all submissions to the Board or its committees; and
(l) all decisions of the Board related to the procurement, including, but not limited to—
(i) the choice of procurement procedure,
(ii) the approval of bidding documents,
(iii) the approval of evaluation reports,
(iv) the contract award,
(v) the approval of contract documents and contract amendments, and
(vi) any decision to suspend or cancel procurement proceedings.
(2) Records shall be maintained on all procurement proceedings for the periods specified in the National Archives Act (Cap. 59:04).
(1) The language that shall be used in all bidding documents shall be English, and it shall be so specified in the documents.
(2) Subject to the provisions of these Regulations—
(a) minutes shall be taken at meetings that include negotiations authorised by the Board and its committees, between a procuring entity and either the bidders or contractors, or both; and
(b) any agreement concluded at a meeting referred to in paragraph (a) shall be confirmed in writing.
(1) A procuring entity or a disposing entity may—
(a) proceed to issue a bid or invitation to tender without the approval of the Board where the procuring or disposing entity was required to proceed with the bid or invitation due to an urgent requirement or emergency arising from special circumstances, and the procurement shall be sanctioned by the Board in accordance with section 44 of the Act; or
(b) where there is insufficient time to follow the established procedures for procurement, make a request to the Board, in writing, stating the reasons for the urgency and justification for the departure from the established procedures.
(2) An emergency procurement may be permitted only for emergencies which could not have been foreseen by the procuring entity and which are not the result of delays by or within the procuring entity.
(3) Where emergency procurement is permitted in situations which could have been foreseen or are the result of delays by or within the procuring entity, a plan shall be prepared by the procuring entity to indicate the steps to be taken to prevent a repeat of similar circumstances.
24. Splitting of procuring requirements
(1) A procuring entity shall not split up procurement requirements for works, services or supplies which could be procured on a single contract, for purposes of avoiding a method of procurement required in Part V.
(2) Each procurement entity shall ensure that for each procurement the method of procurement utilised is the open unrestrictive competitive bidding, unless otherwise specified by the Board.
25. Aggregation of requirements
(1) Procurement requirements shall be aggregated for all departments of the procuring entity for the financial year or other appropriate period of time, whichever is applicable.
(2) Supplies and works in common use by more than one procuring entity shall be subject to common procurement, co-ordinated by the Board or any of its committees.
(1) Procurement for framework contracts shall be subject to all the provisions of these Regulations, except where specified otherwise in this regulation or the guidelines.
(2) A procuring entity shall use the appropriate method of procurement for the procurement of works, services or supplies under a framework contract in accordance with the provisions of Part VI.
(3) A procuring entity shall use the standard documentation provided by the Board for procurement under a framework contract.
(4) A framework contract shall—
(a) be concluded for a minimum period of 12 months; and
(b) have contract prices fixed and not subject to variation for the duration of the contract.
(5) A procuring entity shall use estimated quantities or values when concluding a framework contract and shall not make a commitment to purchase the full quantity or value.
(6) Following the award of a framework contract, specific requirements during the period of the framework contract shall be procured through the placement of call-off or delivery orders in accordance with the provisions of the framework contract.
27. Initiation of procurement requirements and confirmation of funding
(1) Procurement requirements shall be stated in the standard Form provided by the Board and set out in the Second Schedule.
(2) A procuring entity shall request for and obtain the consent of the Board before the use of a format other than that provided by the Board.
(3) The accounting officer or any authorised official shall provide a certification confirming the availability of funds, as evidence of the availability of budgeted or supplementary funds for the current financial year, the procurement or allocation for subsequent years.
(4) The signature of the accounting officer or authorised official, on the standard form stating that the procurement requirements provided by the Board have been met, shall be evidence of approval of procurement requirements.
(5) The accounting officer shall designate a person as an authorised official for the purposes of this regulation in accordance with internal procedures, but the accounting officer shall retain overall responsibility for procurement for the procuring entity.
(1) A pre-qualification process may be used under open international bidding or open domestic bidding to obtain a shortlist of bidders who have the proven capability and resources to perform the contract satisfactorily.
(2) A pre-qualification process may be used where the supplies, works or services required are highly complex or specialised or require detailed design.
(3) A pre-qualification process shall be open to all providers, who shall be invited to participate in the process through an advertisement of a prequalification notice containing a statement as provided in subregulation (5), published in a newspaper of wide circulation in Botswana.
(4) A procuring entity shall commence a pre-qualification exercise by submitting a request for the pre-qualification to the Board, the Ministerial Tender Committee or District Tender Committee, as the case may be.
(5) A pre-qualification notice shall contain a statement of the scope of the procurement, clearly giving the necessary details of the requirements and the criteria for pre-qualification, and such pre-qualification notice shall be vetted by the Board or its committees, as the case may be.
(6) The pre-qualification period shall be no less than 14 days.
(7) A procuring entity shall require providers to submit sealed, written pre-qualification applications accompanied by such documents as the procuring entity may require, including the details contained in the pre-qualification form set out in the Third Schedule.
(8) A provider shall qualify for the pre-qualification bid on the basis of having the highest capability and the resources for the particular procurement, taking into account—
(a) its experience and past performance on similar contracts;
(b) its capability with respect to personnel, equipment and manufacturing or construction facilities;
(c) its financial position; and
(d) any other relevant criteria specified in the pre-qualification document.
(9) The assessment of pre-qualification submissions shall be in accordance with the requirements and criteria stated in the invitation for prequalification.
(10) After the assessment referred to in subregulation (9), the procuring entity shall address an invitation to bid to—
(a) all providers who submitted pre-qualification applications and who meet the specified pre-qualification criteria; or
(b) a stated number of bidders, which number shall be appropriate to ensure effective competition from among the bidders who submitted pre-qualification applications and who meet the pre-qualification criteria.
(11) Where an invitation to bid is not addressed to all pre-qualified bidders, the bidders selected to bid are those who satisfy the minimum cut-off mark specified in the bidding documents.
(1) A statement of requirements shall include—
(a) generic, functional or performance specifications of the items to be procured;
(b) the terms of reference for the particular procurement activity;
(c) a brief;
(d) the scope of works for a construction contract;
(e) design drawings;
(f) bills of quantities or the equivalent;
as may be appropriate, giving a correct and complete description of the subject of the procurement for the purposes of creating fair and open competition.
(2) A statement of requirements shall be used to inform bidders of the procuring and disposing entity’s requirements and to determine how closely and effectively a bidder can meet these requirements.
(3) The description, in a statement of requirements, shall be prepared in such a way as to ensure that the works, services or supplies are fit for the purpose for which they are being purchased and are of appropriate quality.
(4) A statement of requirements shall use standard specifications issued in terms of the Act and these Regulations.
(1) A procuring entity shall state its procurement requirement for supplies, works or services—
(a) in writing, in the appropriate standardised bidding documents provided by the Board; and
(b) in accordance with the type, value and relative complexity of the particular procurement requirement.
(2) Any solicitation document issued by the procuring entity shall include—
(a) an invitation to bid and instructions on the—
(i) preparation and submission of the bid,
(ii) date, time and address for receipt of bids, and
(iii) place and time of bid opening;
(b) a bid form;
(c) the general conditions of contract or a statement of the general conditions that will apply;
(d) special conditions of contract;
(e) a statement of requirements;
(f) a schedule of requirements and price schedule;
(g) a statement of the qualification documentation to be provided by the bidder;
(h) the contract form or a statement of the contract or order documents that will apply; and
(i) the format for securities, guarantees or other documents of security, where required.
(1) A procuring entity may hold pre-bid meetings to—
(a) allow potential bidders to either seek clarification; or
(b) have access to project sites.
(2) Arrangements for pre-bid meetings shall be included in the bidding documents.
(3) A potential bidder shall be given not less than 14 days notice of the pre-bid meetings, and, where appropriate, such notice period shall be extended to accommodate international methods of procurement.
(4) A pre-bid meeting shall be held for such time as is reasonable for the particular bid, to enable bidders to consider any additional information that may be necessary in preparing their bids.
(5) The procuring entity shall prepare minutes for all pre-bid meetings and copies of the minutes shall be provided to all providers who purchased or were issued with the bidding documents.
(6) Pre-bid meetings shall be managed by the procuring entity.
(1) The method for selection of bidders to be invited to bid shall be in accordance with the provisions of Part IV and shall be—
(a) by publication of a bid notice;
(b) by development of a shortlist; or
(c) on a sole provider basis.
(2) A bid notice shall be published in at least one newspaper of wide circulation, in the Gazette and in any electronic or print media as the procuring entity may consider appropriate.
(3) A tender notice and an invitation to tender shall be in the standard form approved for use by the Board.
(4) A short list of bidders shall be based on written expressions of interests and shall include bidders who would have met the pre-determined cut-off mark selected on the basis of—
(a) a provider’s performance record on previous projects;
(b) market knowledge of providers, where available; or
(c) whether the provider is on the register of contractors maintained by the Board.
(5) Where a successful provider is to be selected from a shortlist of bidders, the selected provider shall be the best qualified and his or her bid determined as offering value for money to the extent practicable.
(6) Selection of bidders from a register of providers shall be conducted to allow for equal opportunity of selection to all registered providers.
(1) The bidding period shall be such length of time as is necessary to accommodate the—
(a) location of short-listed or potential bidders and the time required for delivery or transmission of their bids;
(b) level of detail required in a bid; or
(c) anticipated duration of the procurement process.
(2) Unless otherwise determined by the Board, the minimum bidding period specified shall be—
(a) six weeks, in the case of open international competitive bidding;
(b) four weeks, in the case of national competitive bidding; and
(c) two weeks, in the case of selective tendering on the basis of a shortlist.
34. Clarification of bidding documents
(1) Bidding documents shall stipulate the date after which bidders may not seek clarification of the bidding documents.
(2) The date to be stipulated under subregulation (1) shall be determined to allow adequate time for all bidders to receive and study the bidding documents.
(2A) A procuring entity shall respond to bidders promptly or within a reasonable time of receipt of a request for clarification of bidding documents from a bidder, to enable bidders to incorporate the clarification in their bid proposals.
(3) Any addendum to a bidding document shall be communicated promptly, in writing, to all bidders who purchased or were issued with bidding documents, in order to provide for adequate opportunity for bidders to seek clarification and to obtain necessary responses in accordance with regulation 34(1).
(4) An addendum to a bidding document shall be issued in writing and the same information shall be sent to all prospective bidders.
(5) Any extension of a bidding period shall be communicated promptly, by publication of a notice in the Gazette.
(6) In the event of a conflict between the content of the information contained in the tender notice and that which is contained in the bidding document, the information contained in the bidding document shall take precedence.
(1) A bid shall be structured in the format prescribed in bidding documents approved by the Board.
(2) The procedure for signing and authorising a bid by the bidder shall be as set out in the bidding documents.
(1) Bidding documents shall contain instructions on the method of bid submission, which shall be—
(a) a one-envelope submission, in which a tender document containing the tenderers financial and technical offer, is submitted together in one sealed envelope; or
(b) a two-envelope submission, in which the financial offer from the tenderer is placed in one sealed envelope marked Financial Offer, and the technical offer is placed into a second sealed envelope marked Technical Offer, and both envelopes are placed into a third envelope which is sealed.
(2) Bidding documents shall state that bids shall be submitted in outer envelopes, securely sealed in such a manner that opening and resealing cannot be achieved undetected.
(3) Bidders may use their preferred method of envelope sealing.
(4) The Board or a procuring or disposing entity shall reject any envelope, at any bid opening, that is not sealed in such manner as is stated in subregulation (2).
(5) Bidding documents shall contain instructions on the details of labelling and references to be written out on each envelope which shall include—
(a) the procurement reference number;
(b) the name, telephone number and postal address of the bidder;
(c) technical or financial information where one or two envelope submission methods are used; and
(d) the instruction that the bid shall not be opened before the time and date set for the bid opening.
(1) Bidding documents shall contain instructions that a bidder may—
(a) withdraw his or her bid, in accordance with the provisions of the bidding documents by giving notification, to the Board, of the withdrawal of the bid, which notification shall be authorised and submitted in the same manner the bid was submitted;
(b) modify his or her bid; or
(c) replace his or her bid,
at any time before the deadline for submission of bids.
(2) A notification to withdraw a bid shall be opened, read out and recorded at the bid opening, in accordance with the guidelines.
(3) The procuring entity shall specify in bidding documents, the procedure and deadline for withdrawal, modification or replacement of bids, which shall be the same as the deadline for submission.
(4) A bidder withdrawing his or her bid shall, in writing, notify the procuring and disposing entity of the withdrawal, and the withdrawal letter shall be authorised and submitted in the same way as the bid, in an envelope clearly marked “WITHDRAWAL”.
(5) A bidder withdrawing his or her bid may submit a new bid in accordance with the bid submission instructions in the bidding documents.
(1) All bidding documents shall contain instructions for the time, date and place for bid submission.
(2) Where the closing date falls on a Saturday, a Sunday or a public holiday, tenders may be lodged until 10 a.m. the following working day.
(3) Tender documents submitted by courier shall only be acceptable if they bear the appropriate tender number and description and the inscription “Tender Documents. Not to be opened before ……” on the face of the package.
(4) In addition to any other requirement in the bidding document, a bid submitted after the date and time of submission shall be returned, unopened, to the bidder immediately or after the bid opening with the words “Late Tender”, together with the date and time on which the bid was so received.
(5) Extension of the tender closing date shall only be granted upon sufficient evidence by the procuring entity, to the Board, the Ministerial Committee or the District Committee, as the case may be, and only where there is sufficient time to publish an amending notification before the original closing date.
(6) The procedure for the opening of bids, which shall be in accordance with the provisions of Parts III, IV and V and the guidelines, shall require—
(a) a public bid opening to be witnessed by bidders representatives, who choose to attend; or
(b) an internal bid opening to be witnessed by at least three members of the procuring entity’s staff, which shall include at least one member of the Ministerial Committee.
(7) For a bid opening referred to in subregulation (6), the procuring entity shall—
(a) keep a record of the opening on the prescribed form, which shall be signed by all members of the procuring entity or procurement unit attending; and
(b) in the case of an internal bid opening, avail to bidders representatives a copy of the record at such nominal fee as the Board may determine.
(1) Bidding documents shall—
(a) state the minimum qualifications required for a bid; and
(b) require each bidder to produce the required documentary evidence as proof that they qualify for the bid.
(2) A bidder’s ability to meet the required qualifications shall form an integral part of the evaluation process.
PART IV
Evaluation Processes (regs 40-53A)
(1) The accounting officer shall appoint an evaluation committee which shall comprise not less than three members.
(2) Where members of the Evaluation Committee disagree on the results of an evaluation, the findings and recommendations of the majority shall be stated in the evaluation report.
(3) The evaluation report shall contain a statement of any disagreement and the reasons therefor, further discussions held on the issue and the names of those holding the alternative views.
(4) The Evaluation Report shall be signed by all members of the Evaluation Committee in attendance.
(5) An Evaluation Report shall be in the format specified by the Board.
(1) Notwithstanding the other provisions of this regulation, a procuring entity shall correct purely arithmetical errors in a bid document on the following basis—
(a) if there is a discrepancy between the unit price and the total price that is obtained by multiplying the unit price and the quantity, the unit price shall prevail, and the total price shall be corrected accordingly; or
(b) if there is a discrepancy between the amount in words and the amount in figures, the amount in words shall prevail.
(2) Bidders shall be promptly notified of any correction of errors made under subregulation (1)(a), and, where the bidder does not accept such correction, his or her bid shall be rejected.
(3) The procedure for correction of arithmetic errors shall be stated in the bidding documents.
(4) Notwithstanding the provisions of this regulation, a procuring entity may correct other minor errors or oversights, in a bid document, that are capable of being corrected without changing the substance of the bid.
(5) Corrections made to a bid document shall be quantified and taken into account in the evaluation, wherever possible.
42. Choice of evaluation method
(1) Each evaluation to be performed under these Regulations shall be performed in accordance with such procedure, as is set out in regulations 43 to 48, as may be relevant to the particular evaluation and in accordance with the provisions of Part V.
(2) A procuring entity shall seek the consent of the Board to use an evaluation method other than one given in these Regulations.
43. Evaluation by quality and cost based selection
(1) The quality and cost based selection evaluation method shall be conducted as follows—
(a) both the quality and the cost of bids shall be taken into account in a process under which technical bids are evaluated without access to financial bids; and
(b) the relative weight to be given to the quality and cost components of the evaluation shall depend on the nature of the assignment and shall be stated in the invitation to bid.
(2) A bid submitted under the quality and cost based selection evaluation method shall be submitted under the dual envelope submission method and evaluated to determine the—
(a) quality, with regard to a technical bid, in accordance with—
(i) an evaluation against set criteria on a merit point system to determine the total technical score for the technical bid received, and
(ii) the total scores determined compared to the minimum technical score;
(b) the total weighted cost score, with regard to a financial bid, where the bidder reached the minimum technical score; and
(c) the bidder obtaining the highest total score, who shall be recommended for the award of the contract.
(3) The procedure for the quality and cost based selection evaluation of a technical bid shall be conducted in three stages, as set out in Part I of the Fourth Schedule.
(4) In this regulation, quality and cost based selection means an evaluation methodology that takes into account both the quality and the cost of bids in a process under which technical bids are evaluated without access to financial bids.
44. Evaluation by quality based selection
(1) Under the quality-based selection evaluation method the evaluation of—
(a) a technical bid shall be conducted against set criteria on a merit point system to determine the best technical bid without access to financial bids;
(b) the quality of a bid shall be the primary factor to be considered; and
(c) cost shall apply only to the best technical bid.
(2) The procedure for the quality-based selection evaluation of a technical bid shall be conducted in three stages, as set out in Part II of the Fourth Schedule.
(3) In this regulation quality-based selection means an evaluation method that uses quality as the primary factor in a process under which technical bids are evaluated without access to financial bids and a financial evaluation is undertaken only for the best technical bid.
45. Evaluation by fixed budget selection
(1) Under the fixed budget selection evaluation method, the procuring entity shall indicate its available budget, and evaluation shall be considered as follows—
(a) a bidder shall be required to provide, within the stated budget, the best possible technical and financial bids, in separate envelopes; and
(b) the bidder with the evaluated technical bid of the highest quality, which is within the stated budget, shall be recommended to be awarded the contract.
(2) The schedule of requirements (otherwise referred to, in the bid documents, as the terms of reference), prepared by the procuring entity, shall contain all the necessary detail to portray the sufficiency of the budget for the performance, by a bidder, of the expected tasks as shall be contained in the contract.
(3) The procedure for the fixed budget selection evaluation of a technical and financial bid shall be conducted in three stages, as set out in Part III of the Fourth Schedule.
(4) In this regulation “fixed budget selection” means an evaluation method that recommends the bidder with the best technical bid which is within the budget.
46. Evaluation by least cost selection supplies – and works
(1) The least cost selection-supplies and works evaluation method shall be used to identify the lowest priced bid, which meets all the commercial and technical requirements of the procuring entity.
(2) Unless otherwise expressly stated in the bidding document, a bid for the least cost selection-supplies and works method shall require the use of a single envelope submission method.
(3) Recommendation shall be made for the award of contract to the bid which is—
(a) qualified;
(b) technically compliant;
(c) lowest priced; and
(d) responsive.
(4) The procedure for the least cost selection-supplies and works evaluation of a technical bid shall be conducted in three stages, as set out in Part IV of the Fourth Schedule.
(5) In this regulation, and for the purposes of regulation 47, “least cost selection-supplies and works” means an evaluation method that recommends the lowest price bid which meets the commercial and technical requirements of the procuring and disposing entity.
47. Evaluation by least cost selection – services
(1) The least cost selection-services evaluation method shall be used to identify the lowest priced bid, which meets all the commercial and technical service requirements of the procuring entity.
(2) The least cost selection-services evaluation method shall require the use of separate sealed envelopes for submission of technical and financial bids.
(3) The procedure for the least cost selection-services evaluation of a technical bid shall be conducted in three stages, as set out in Part V of the Fourth Schedule.
48. Evaluation by qualification selection
(1) The qualification selection evaluation method shall be used for small assignments, of costs as may be determined by the procuring and disposing entity, for which the need for preparing and evaluating competitive bids is not justified.
(2) The procuring entity, for the purpose of soliciting bidders under the qualification selection method shall—
(a) follow a two stage process;
(b) prepare the terms of reference;
(c) request bidders to supply expressions of interest and information concerning their experience and competence relevant to the assignment; and
(d) establish a short-list.
(3) The procedure to be followed for the qualification selection evaluation method shall be conducted in two stages, as set out in Part VI of the Fourth Schedule.
(4) In this regulation “qualification selection” means a method of procurement used in the selection of a bidder based exclusively on the quality of the proposal without reference to price.
(1) Any amendment to a bidding document by a bidder, including an amendment of the bid price, shall not be permitted after the date and time of bid closing.
(2) A procuring entity shall reject the bid of any bidder who attempts to make or who has made amendments to his or her bid, as provided in subregulation (1), after the date and time of bid closing and the matter shall be reported to the procuring entity or the Board.
(3) Every bidding document shall contain the prohibition against amending the bid as provided in subregulations (1) and (2).
50. Clarification of bids received
(1) A procuring entity may, in writing, request clarification on any bid received prior to tender closure from any person connected to the bid and such person shall, as soon as practicable, provide a written response.
(2) No amendments to the substance of the bid, including amendment of the bid price, shall be sought, offered or permitted after the clarification referred to in subregulation (1).
51. Negotiations for open, restricted and quotation biddings
(1) No negotiations shall be held by a procuring entity with any bidder who has tendered a bid to be considered under—
(a) open bidding;
(b) restricted bidding; or
(c) quotations procurement,
until after a decision on the preferred bidder has been made and approval of the negotiation document has been given by the Board, Ministerial Committee, or District Tender Committee under subregulation (2).
(2) The Evaluation Committee shall give a recommendation for an approval of the negotiation document by—
(a) producing an evaluation report containing a clear recommendation for an award of contract, and
(b) providing details of the nature of the proposed negotiations, listing the points that are to be clarified or discussed and the objectives to be attained in the negotiation document; and
(c) having the accounting officer or his or her representative approve the negotiation document prior to any negotiations taking place.
(3) The procuring entity shall be represented at the negotiations, held with the preferred bidder, by at least three staff members who may negotiate the terms of the contract, but such staff members shall not commit the procuring entity to any contractual terms prior to confirming any such terms with the accounting officer or his or her representative.
(4) The procuring entity shall submit minutes of the negotiations and the evaluation report, in writing, to the Board, Ministerial Committee or District Tender Committee on the success of the negotiations in attaining the objectives set out on the negotiation document.
(5) The Board, Ministerial Committee or District Tender Committee may—
(a) approve the outcome of the negotiations in their entirety;
(b) request further negotiations on specific points; or
(c) reject and cancel the negotiations in their entirety.
(6) The results of any approved negotiations shall be incorporated into the contract document.
(7) No condition of award shall require the bidder, under any circumstances, to—
(a) undertake any further responsibility not specified in the bidding documents; or
(b) amend the bid price or otherwise modify the bid.
(8) The following requests, communications or confirmation shall be in writing—
(a) request for amendments to the terms of a bid affecting the responsibilities and tasks defined in the bidding documents; and
(b) communication or confirmation of all subsequent and supplementary discussions or meetings.
52. Negotiations under direct procurement method
(1) A procurement entity shall not hold negotiations to consider a bid under the direct procurement method unless a written bid has been received and evaluated.
(2) Approval of the negotiation document shall be given in accordance with the following procedure—
(a) the procuring entity shall issue a written bidding document based on the standard documentation, modified, as necessary, to suit the requirements, the value and the circumstances of the particular procurement;
(b) a bidder shall be required to submit a written bid in accordance with the terms of the bidding document;
(c) the Evaluation Committee shall evaluate the bid received to determine its compliance with the bidding document and undertake an analysis of value for money of such bid by comparing the bid price with prices previously obtained through competitive procedures in respect of similar procurement, where applicable, or a breakdown analysis of current component costs for base items, freight and insurance elements and taking into account the circumstances and value of the procurement;
(d) the procuring entity shall provide details of the nature of the proposed negotiations listing the points that are to be clarified or discussed and the objectives to be attained in a negotiation document; and
(e) the procuring entity shall obtain the Board’s approval of the negotiation document prior to any negotiations taking place.
(3) The procuring entity shall be represented, at the negotiations held with the bidder, by at least three staff members who may negotiate the terms of the contract, but such staff members shall not commit the procuring entity to any contractual terms prior to confirming any such terms with the Evaluation Committee.
(4) The staff representing the procurement entity, at the negotiations, shall submit minutes of the meeting for approval and report, in writing, to the Board or its committees, on the success of the negotiations in attaining the objectives set out on the negotiation document.
(5) The Board or any of its committees may—
(a) approve the outcome of the negotiations in their entirety;
(b) request further negotiations on specific points; or
(c) reject and cancel the negotiations in their entirety, and shall give reasons for the action taken.
(6) The results of any approved negotiations shall be incorporated into the contract document.
(1) The bidding documents shall state the procedure to be followed for the award of contract.
(2) The exchange of letters of offer and acceptance between the procuring entity and the successful bidder shall constitute the act of placement of the contract.
(3) No communication in any form, that would bind a procuring entity to a contract, shall be issued by the procuring entity unless such communication has received the prior approval of the Board, its committees or such other authority or person to whom the Board has delegated the power to approve communications.
(4) Each procuring or disposing entity shall conclude a contract by the use of—
(a) the standard form of conditions of contract approved for use by the Board; or
(b) the contract documents stipulated in the tender documents if the documents referred to in paragraph (a) cannot be used.
(1) A procuring or disposing entity shall not cancel a procurement activity without the prior approval of the Board or its committees.
(2) The Board or its committees shall not authorise the cancellation of any tender awarded by a procuring or disposing entity unless the Board or its committees are given sufficient justification for the cancellation of the tender.
(3) The Board or its committees shall, prior to the cancellation of a tender ensure that—
(a) the circumstances claimed by procuring or disposing entity for the cancellation of a tender exist; and
(b) the circumstances claimed by the procuring or disposing entity are beyond the control of the procuring or disposing entity.
(4) Where the Board or its committees have approved a tender cancellation, the Board or its committees shall publish a tender cancellation notice in one newspaper of wide circulation in Botswana and in the Gazette.
PART V
Choice of Procurement Methods (regs 54-61)
54. Choice of procurement methods
(1) A procuring and disposing entity shall use such procurement method as is provided for in these Regulations.
(2) The choice of procurement method shall be on the basis of the—
(a) estimated value of the requirements; or
(b) circumstances pertaining to the requirement.
(3) The estimated value of the requirement shall be the main criterion in determining the choice of procurement method and the choice shall be made in accordance with the guidelines.
(1) Except as provided for in these Regulations, a procuring or disposing entity shall use the open domestic bidding method.
(2) A procuring and disposing entity may request the Board for permission to use a procurement procedure other than the open domestic bidding method where the circumstances for the bid are not provided for under the provisions of these Regulations.
(3) The open domestic bidding method shall be open to all bidders following the advertisement of a bid notice in the Gazette and at least one newspaper of wide circulation in Botswana.
(4) The Board, in consultation with the Ministerial Committee or the District Committee, as the case may be, shall, in line with the provisions of the procurement, determine the cost of bidding documents that are to be sold to prospective bidders.
(5) Nothing shall prevent a resident foreign or international bidder from participating in the open domestic bidding subject to registration requirements.
56. Open international bidding
(1) The open international bidding method may be used in place of the open domestic bidding, with the prior written approval of the Board, where—
(a) optimal competition may be enhanced with foreign bidders participation;
(b) non-resident foreign bidders would increase value for money; or
(c) the technical complexity of the procurement requirement requires the participation of non-resident foreign bidders.
(2) An advertisement for the submission of bids for the open international bidding method shall be published in the Gazette and in the appropriate foreign or international publications or professional or trade journals with a wide international circulation and shall be open to all bidders.
(3) The Minister, in consultation with the Board, shall, in compliance with the provisions of the procurement guidelines, determine the cost of bidding documents that are to be sold to prospective bidders.
(4) Nothing shall prevent a domestic bidder from participating in an open international bidding.
57. Restricted international bidding
(1) The restricted international bidding method may only be used with the prior written authority of the Board, where—
(a) the supplies, works or services are available only from a limited number of providers;
(b) there is insufficient time for an open bidding procedure due to an emergency situation;
(c) the estimated value of the procurement does not exceed the threshold stated in the guidelines;
(d) other exceptional circumstances justify a departure from open bidding; or
(e) foreign providers are included in the short-list of bidders.
(2) The invitation to bid under subregulation (1) shall be addressed to a limited number of potential bidders without advertising the opportunity in a bid notice in accordance with regulation 56(2).
(2A) The Minister, in consultation with the Board, shall, in compliance with the provisions of the procurement guidelines, determine the cost of bidding documents that are to be sold to prospective bidders.
58. Restricted domestic bidding
(1) The restricted domestic bidding method may be used where—
(a) the supplies, works or services are available only from a limited number of providers;
(b) there is insufficient time for an open bidding procedure due to an emergency situation;
(c) the estimated value of the procurement does not exceed the threshold stated in the procurement; or
(d) other exceptional circumstances justify a departure from open bidding.
(2) The invitation to bid under subregulation (1) shall be addressed to a limited number of potential bidders without advertising the opportunity in a bid notice in accordance with regulation 56(2).
(2A) The Minister, in consultation with the Board, shall, in compliance with the provisions of the procurement guidelines, determine the cost of bidding documents that are to be sold to prospective bidders.
59. Quotations proposals procurement
(1) The quotations proposals procurement method may be used where—
(a) there is insufficient time for an open or restricted bidding procedure due to an emergency situation;
(b) the estimated value of the procurement does not exceed the threshold stated in the guidelines; or
(c) other exceptional circumstances justify a departure from open or restricted bidding.
(2) In quotations proposals procurement, a written bidding document is addressed to a limited number of potential bidders without publicly advertising the opportunity.
(3) A procuring entity shall obtain at least five bids as far as is practicable.
(1) The micro procurement method may be used where the value of goods, services or works to be procured does not justify a competitive procedure or the value is within the threshold relating to micro procurement.
(2) In the micro procurement method, the selection of a supplier may be conducted on a sole supplier basis without competition and without the requirement of the following—
(a) bidding documentation;
(b) written bid; and
(c) signed contract document.
(3) The procuring 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.
(4) The procuring entity shall be responsible for ensuring that value for money is obtained to the extent practical under this procurement method.
(5) Any person responsible for micro procurement made under this regulation shall report such procurement to the Ministerial Committee within 30 days of such procurement.
(1) The direct procurement method may be used where the selection of supplier is conducted on a sole supplier basis without competition, such as where—
(a) there is insufficient time for any other procurement method due to an emergency situation;
(b) the supplies, works or services are available from only one provider;
(c) an existing contract could be extended for additional supplies, works or services of a similar nature and no advantage could be obtained by further competition, provided the prices on the extended contract are reasonable;
(d) additional supplies, works or services are required to be compatible with existing supplies, works or services and it is advantageous or necessary to purchase the additional supplies, works or services from the original supplier, if the prices of the additional contract are reasonable;
(e) it is essential or preferable to purchase additional supplies, works or services 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), the value of the new supplies, works or services shall generally be less than the value of the original or existing contract and the original contract shall have been awarded through a competitive process.
(3) A procuring entity shall use the appropriate documents, from the documentation issued by the Board, modified as necessary for the requirements of the procurement.
(4) A direct procurement contract shall be in writing in a contract form as provided in the documentation referred to under subregulation (3).
(5) The procuring entity shall not commence any procurement process under the direct procurement method prior to the Board signifying its—
(a) acceptance of the full justification given by the Contracts Committee for the necessity for the use of method; and
(b) approval of use of the method.
(6) The procurement process, under direct procurement, shall be subject to the procurement requirements, as far as practicable, provided in Part III.
(7) The Board may award a bid for a procurement under this regulation if it is satisfied that the procurement has been sufficiently demonstrated to be of value for money.
PART VI
Procurement of Supplies (regs 62-68)
(1) In this regulation, policy of standardisation means a policy of standardisation which has been approved by Cabinet as contained in a Cabinet Directive currently in force.
(2) A procuring and disposing entity shall not use a policy of standardisation for any of its procurement requirements without the prior approval of the Board.
(3) The Board shall approve a standardisation policy for use by a procuring and disposing entity, that has been approved by Cabinet in relation to the proposed procurement activity and which shall be accompanied by statements verifying—
(a) the technical, economic and logistical case for standardisation;
(b) the case for the selection of the proposed standardised supplies, including their advantages over alternative supplies;
(c) projections for future procurement of the object of standardisation;
(d) plans to ensure transparency and value for money in the procurement of the standardised supplies; and
(e) any other information relevant to the proposed standardisation policy.
(4) Upon due consideration of a recommendation made to the Board under subregulation (2), the Board may—
(a) approve the recommendation; or
(b) reject the recommendation, and state, in writing, the grounds for its approval or rejection thereof.
(5) An approval for the use of a policy of standardisation shall be for such period as the Board may determine, after which period the policy shall be reviewed by the Board.
(6) Where a procuring entity determines the need for the continued use of a policy of standardisation after the period of approval has expired, the Accounting Officer shall submit the following information to the Board, at least 14 days before such expiration, to support the application for continued use of the policy—
(a) an updated technical, economic and logistical statement of the standardisation, indicating any changes since the previous application;
(b) an updated statement of the selection of the proposed standardised supplies, including the advantages of such supplies over alternative supplies, indicating any changes since the previous application;
(c) the original projections for procurement, the actual volume and value of procurement during the period of the policy and projections for future procurement of the object of standardisation;
(d) plans to ensure transparency and value for money in the procurement of the standardised supplies; and
(e) any other information relevant to the proposed continuation of the policy.
(7) The Board may approve or reject the application for the continued use of the policy of standardisation, and where the Board rejects such application it shall state, in writing, the grounds for such rejection.
63. Statement of requirements for procurement of supplies
The statement of requirements for the procurement of supplies shall be defined by the specification of the requirements, and such specification shall contain a complete, precise and unambiguous description of the supplies required and shall include, where appropriate—
(a) a generic, physical functional or performance description of the qualities, including any environmental or safety features, required of the subject of the procurement;
(b) dimensions, symbols, terminology, language, packaging, marking and labelling of the supplies required; and
(c) the national or international standard, where available, or the standards adopted and approved by the Board after consultation with the Botswana Bureau of Standards.
Subject to these Regulations and the guidelines, bidding documents for each individual procurement requirement for supplies shall specify the terms and conditions applicable and any other information that may be required, and shall be accompanied by the—
(a) specification and list of supplies required;
(b) level and form of bid security required, if any;
(c) level and form of performance security that will be required, if any;
(d) validity of bids required;
(e) bid submission method;
(f) currency or currencies in which bids are to be submitted;
(g) procedure for conversion of prices to a single currency for evaluation purposes, including the source and date of exchange rates to be used;
(h) currency in which the contract price will be paid;
(i) payment terms, including any advance payment, stage payments or payment retention;
(j) basis of prices required, either fixed or variable, and if variable, the method for calculating variations;
(k) method of payment;
(l) documentation required for payment;
(m) delivery terms required in accordance with INCOTERMS;
(n) delivery period required;
(o) inspection or tests required, if any;
(p) insurance policy or statement requirements, if any;
(q) warranty required, if any; and
(r) evaluation methodology and criteria.
65. Pre-qualification for supplies
(1) A pre-qualification for supplies shall be—
(a) set out in accordance with this regulation;
(b) open to all providers who shall be invited to participate by means of a pre-qualification notice advertised in a newspaper of wide circulation in Botswana; and
(c) held on a given date following the advertisement referred to in paragraph (b).
(2) A procuring entity shall use appropriate documents, issued by the Board, for purposes of a pre-qualification for supplies in all the proceedings.
(3) The documents for the pre-qualification for supplies shall contain details of the scope of the procurement and a clear statement of the requirements and criteria for pre-qualification.
(4) The pre-qualification period shall be no less than 14 days.
(5) A procuring entity shall require a provider to submit a written and sealed pre-qualification offer of interest to bid.
(6) The bidder selected as a provider for a pre-qualification bid shall be the bidder having the highest standard of capability and resources determined on the basis of—
(a) experience and past performance on similar contracts;
(b) capabilities with respect to personnel, equipment and manufacturing facilities;
(c) the financial position; and
(d) any other relevant criteria specified in the pre-qualification document.
(7) A procuring entity shall assess a pre-qualification submission in accordance with the requirements and criteria set out in the pre-qualification invitation document and determine the selection of providers in accordance with such criteria.
(8) A procuring entity shall direct the invitation for a pre-qualification bid to all providers who submitted a pre-qualification submission and who meet the requirements of the pre-qualification criteria.
66. Least cost selection – supplies evaluation
(1) A procuring entity shall use the least cost selection-supplies evaluation method for the evaluation of supplies.
(2) Where a procuring entity determines that an evaluation method provided in these Regulations would be more appropriate for a particular supplies contract it intends to conclude than the evaluation method it is required to use, the procuring entity shall request the authorisation of the Board to use such other evaluation method.
Except as otherwise prescribed in the form of contract included in the tender documents, delivery terms shall be determined in accordance with INCOTERMS and as may be specified in the guidelines.
(1) A procuring entity shall, where applicable, ensure that the following inspection tests are carried out—
(a) inspection of supplies;
(b) sample inspection of items at a factory;
(c) witnessing of factory tests of equipment;
(d) operational inspection of on site tests; or
(e) inspection of quality control management systems.
(2) Where need is established for the inspection requirements referred to under subregulation (1) the procuring entity may, for the purpose, engage a provider under the methods and procedures providing for the procurement of services and on such conditions as shall be determined by the value and complexity of the inspection.
PART VII
Procurement of Works (regs 69-72)
69. Statement of requirements for procurement of works
(1) The statement of requirements for the procurement of works shall be interpreted in accordance with—
(a) the scope of works;
(b) the bill of quantities; or
(c) both the scope of works and the bill of quantities.
(2) The scope of works shall contain a clear, unambiguous and precise description of the works required and may include—
(a) a background narrative to the works required;
(b) the objectives for the works required;
(c) a list of specific tasks to be performed;
(d) the supervision requirements and the line of authority to be followed;
(e) specific administrative arrangements;
(f) the duration of the works that are to apply;
(g) the standards required to be derived from—
(i) national or international standards, where available,
(ii) the standards adopted and approved by the Board after consultation with the Botswana Bureau of Standards, or
(iii) the relevant industry standards, as appropriate to the works; and
(h) such other information as may be necessary to ensure a bidder has sufficient information to submit a responsive bid.
70. Drafting of bidding documents for works
Subject to these Regulations and the guidelines, bidding documents for each individual procurement requirement for works shall specify the terms or conditions applicable and any other information that may be required, and shall be accompanied by the—
(a) specifications, drawings and bill of quantities;
(b) level and form of bid security required, if any;
(c) level and form of performance security required, if any;
(d) validity of bids required;
(e) bid submission method;
(f) drawings or other documentation required;
(g) currency or currencies in which bids are to be submitted;
(h) procedure for conversion of prices to a single currency for evaluation purposes, including the source and date of exchange rates to be used;
(i) currency in which the contract price will be paid;
(j) type of contract, including, but not limited to lump sum, time-based or unit prices;
(k) payment terms, including any advance payments, stage payments or payment retention;
(l) basis of prices required, either fixed or variable, and, if variable, the method for calculating variations;
(m) method of payment;
(n) documentation required for payment;
(o) schedule of completion;
(p) functions and authority of the engineer, architect or contract manager, if any;
(q) inspection or tests required, if any;
(r) insurance cover required; and
(s) evaluation method and criteria.
71. Pre-qualification for works
(1) A pre-qualification for works shall be—
(a) set out in accordance with this regulation;
(b) open to all providers, who shall be invited to participate by means of a pre-qualification notice advertised in a newspaper of wide circulation in Botswana; and
(c) held on a given date following the advertisement referred to in paragraph (b).
(2) A procuring entity shall commence a pre-qualification process for all works tenders by using the Model Pre-qualification Guidelines and Model Documentation issued by the Board.
(3) The documents for the pre-qualification for works shall contain details of the scope of the procurement and a clear statement of the requirements and criteria for pre-qualification.
(4) The pre-qualification period shall be no less than 14 days.
(5) A procuring entity shall require each provider to submit a written and sealed pre-qualification offer of interest to bid.
(6) The procuring entity shall only pre-qualify bidders who have the highest standard of capability and resources determined on the basis of—
(a) experience and past performance on similar contracts;
(b) capabilities with respect to personnel, equipment and manufacturing facilities;
(c) financial position; and
(d) any other relevant criteria specified in the pre-qualification notice.
(7) A procuring entity shall assess a pre-qualification submission in accordance with the requirements and criteria set out in the pre-qualification invitation document and determine the selection of providers in accordance with such criteria.
(8) A procuring entity shall direct the invitation for a pre-qualification bid to—
(a) all pre-qualification bidders who submit responses and who meet the requirements of the pre-qualification; or
(b) the providers referred to in paragraph (a) together with such number of bidders appropriate to ensure effective competition for the bid.
(9) A pre-qualification list shall be valid for a period not exceeding 12 months.
72. Evaluation methods for works
(1) A procuring entity shall use, as the basis of evaluation of works tenders, either the—
(a) quality and cost method; or
(b) least cost method.
(2) Quality and cost based selection may be used where—
(a) the works are difficult to define in the bill of quantities; or
(b) specific operational considerations have a significant importance in the success of the works, such as the—
(i) technical quality of management and workforce,
(ii) speed of mobilisation,
(iii) plant availability,
(iv) current workload; or
(v) other similar factors.
(3) Where a procuring entity determines that an evaluation method, other than a method provided in these Regulations, would be more appropriate for a particular works contract it intends to conclude, it shall request the authorisation of the Board to use such alternative evaluation method.
PART VIII
Procurement of Services (regs 73-76)
73. Statement of requirements for procurement of services
(1) The statement of requirements for the procurement of services shall be interpreted in accordance with the terms of reference.
(2) The terms of reference shall contain a clear, unambiguous and precise description of the services required and shall include, where appropriate—
(a) a background narrative for the services required;
(b) the objectives of the services required together with a list of targets to be achieved by the service provider;
(c) a list of specific tasks or duties to be performed;
(d) a list of material to be delivered at the end of the assignment or outputs against which the achievements of the services can be measured;
(e) the management reporting lines of the service provider to the procuring entity;
(f) assignment duration, specific administrative arrangements and reporting requirements that are to apply; and
(g) the relevant industry standards for approaching and implementing an assignment.
74. Drafting of bidding documents for services
Subject to these Regulations and the procurement guidelines, bidding documents for each individual procurement requirement for services shall specify the terms or conditions applicable and any other information that may be required and shall be accompanied by the—
(a) terms of reference and expected input of key personnel, where applicable;
(b) level and form of bid security required, if any;
(c) level and form of performance security that will be required, if any;
(d) validity of bids required;
(e) bid submission methodology;
(f) currency or currencies in which bids are to be submitted;
(g) procedure for conversion of prices to a single currency for evaluation purposes, including the source and date of exchange rates to be used;
(h) currency in which the contract price will be paid;
(i) basis of prices required, either fixed or variable, and if variable, the method for calculating variations;
(j) method of payment;
(k) type of contract and payment terms, including, but not limited to lump sum, time-based or percentage contract and an indication of whether advance payments are permitted;
(l) duration and timing of inputs;
(m) deliverables or outputs required; and
(n) evaluation method and criteria.
75. Pre-qualification for services
(1) A pre-qualification for services shall be—
(a) open to all providers, who shall be invited to participate by means of a pre-qualification Notice, advertised in the Gazette and in a newspaper of wide national and international circulation; and
(b) held on a given date following the advertisement referred to in paragraph (a).
(2) A procuring entity shall use appropriate documents, issued by the Board, for purposes of a pre-qualification Notice.
(3) The Notice for the pre-qualification for services shall contain details of—
(a) the scope of the procurement and a clear statement of the requirements and criteria for pre-qualification; and
(b) a statement of the capabilities and resources required from the provider in terms of the service contract.
(4) The pre-qualification period shall be no less than 14 days.
(5) A procuring entity shall require each provider to submit a written and sealed pre-qualification offer of interest to bid.
(6) The procuring entity shall only pre-qualify bidders who have the highest standard of capability and resources determined on the basis of—
(a) experience and past performance of similar contracts;
(b) capabilities with respect to personnel, equipment and manufacturing facilities;
(c) financial position (excluding price quotations); and
(d) any other relevant criteria specified in the pre-qualification Notice.
(7) A pre-qualification list shall be valid for a period not exceeding 12 months.
76. Evaluation methods for services
(1) A procuring entity shall use an evaluation method provided in these Regulations for the procurement of services.
(2) The quality and cost based selection evaluation method may be used for professional services where the terms of reference are well defined and prospective bidders have been selected on the basis of a pre-qualification procedure.
(3) The quality based evaluation method may be used for professional services for—
(a) highly specialised assignments for which—
(i) it is difficult to define precise terms of reference and the required input from the consultant,
(ii) the procuring entity expects each consultant to demonstrate innovation in their bid, and
(iii) prospective bidders have been selected on the basis of pre-qualification procedure;
(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, such that bids will not be comparable and in which the value of the services depends on their quality.
(4) The fixed budget selection evaluation method may be used for professional services when the assignment is simple and can be precisely defined, and when the budget is fixed
(5) The least cost selection-services evaluation method may be used for assignments of a standard or routine nature where well established practices and standards exist.
(6) A procuring entity shall first obtain the approval of the Board before using any other evaluation methodology.
PART IX
Administrative Review (regs 77-79)
77. Claim for compensation for contravention of legal provisions
(1) A person who is aggrieved by any decision of the Board or of any of its committees, pursuant to matters arising under section 103 of the Act, may—
(a) submit a complaint by following the review procedures of the Board, set out in regulation 78; and
(b) if that person is dissatisfied with the final decision reached when the review procedures of the Board under paragraph (a) are exhausted, apply to the Independent Committee for a review of the decision.
(2) The following matters shall not be subject to the review referred to in subregulation (1)—
(a) the selection of a method of procurement;
(b) the choice of an evaluation procedure for such procurement;
(c) a decision by the Board or its committee to reject all bids; and
(d) a refusal by the procuring entity to respond to an unsolicited offer of an interest to bid.
78. Procedure for claiming compensation
(1) A person who submits a complaint, under regulation 77(1) shall do so in writing, to the Secretary of the Board.
(2) The complaint referred to in subregulation (1) shall contain particulars of the precise grounds of the complaint and be accompanied by documentary evidence of loss, in support of any monetary claim.
(3) The Board shall cause the procurement proceeding in process to be suspended immediately upon receipt of a complaint in terms of subregulation (1) where—
(a) the Board has not made an award of a bid; or
(b) a letter has not been issued indicating the commencement of the contract.
(4) The Board shall not consider any complaint brought under regulation 77, unless such complaint is submitted within 14 days of the publication of the decision of the Board or its committees, or within 14 days of the date the bidder became aware of the circumstances giving rise to the complaint.
(5) The Board shall inform all the bidders participating in the procurement proceedings, to which the complaint relates, of the circumstances leading to the complaint, as soon as possible after the receipt of the complaint.
(6) Where the Board fails to arrive at a mutually agreed settlement of the complaint with the bidder within 14 days of the submission of the complaint, a dispute shall be declared, and the Secretary of the Board shall refer the dispute to the Independent Committee stating the—
(a) reasons for the referral of the dispute; and
(b) grounds upon which the Board denies liability, where liability is denied.
(7) Where the Secretary to the Board fails to refer the dispute to the Independent Committee, in terms of subregulation (6), the bidder who is party to the dispute may, within seven days from the date the Secretary was required to have referred the dispute, refer the dispute to the Independent Committee.
(8) Any bidder whose interests are, or could be affected, by the review proceedings, that may be held in relation to the complaint, shall have a right to participate in the review proceedings.
(9) Any decision on the complaint arrived at by the Board shall, within five days, be furnished to any of the parties that participated in the review proceedings.
79. Procuring entity to be notified of complaint
(1) Upon receipt of a complaint under regulation 77, the Board shall, immediately, forward a written notice of the complaint to the procuring entity and such notice shall require the procuring entity to suspend any further action in the procurement proceedings to which the complaint relates until the Board, or where appropriate, the Independent Committee has settled the matter.
(2) A written complaint submitted under regulation 77, to the Board, shall not be based on frivolous evidence or circumstances and shall contain a declaration of contents, of which, if proven, demonstrate that where the procurement proceedings are not suspended—
(a) the bidder will suffer irreparable harm;
(b) it is probable that the complainant shall succeed; and
(c) disproportionate harm shall be caused to the procuring entity or to the other bidders.
(3) The total period of suspension under subregulation (2) shall not exceed 60 days.
(4) Any decision taken by the procuring entity and the Board and the grounds and circumstances of such decision shall be made part of the record of procurement proceedings to be kept by the procuring entity and the Board.
PART X
General (regs 80-97)
(1) Except as otherwise provided in the conditions of contract included in the tender documents, a procuring and disposing entity shall place contracts based on fixed and firm prices for a procurement that is to be completed within 12 months from the placement of the contract.
(2) A procuring and disposing entity may place contracts with a price adjustment provision for procurement requirements that will not be completed within 12 months from the placement of a contract.
(3) The Board shall provide procuring and disposing entities with advise in connection with internationally accepted practices in relation to pricing standards for differing procurement requirements.
(1) Except as is provided for in the conditions of any contract, any provision relating to price adjustment may be included in any contract exceeding 12 months, where it is more economical for a procuring and disposing entity to accept the inflation risk than to pay the additional cost for the supplier to accept the risk.
(2) Where a price adjustment provision is included in a contract referred to in subregulation (1), the method for calculating the adjustment, and any restrictions or conditions on that adjustment, shall be clearly stated in the bidding documents.
(3) Any price adjustment shall be calculated by use of pre-defined formula, which separates the total price into components, such as labour, equipment, material and fuel, which are adjusted by price indices specified for each component:
Provided that if the payment currency is different from the source of the input and corresponding index, a correction factor shall be applied in the formula, to avoid incorrect adjustment.
(4) The formula referred to in subregulation (3), the price indices, any correction factors and the base date for application shall be clearly stated in the bidding documents and any resulting contract.
(5) The formula referred to in subregulation (3) and the price indices shall be appropriate to the type of procurement and the source of the inputs and shall use industry standards wherever possible.
(6) Where no industry standards are, or other appropriate formula is, available, a procuring and disposing entity shall use the sample formula specified in the Fifth Schedule.
(7) Any request for price adjustment shall be submitted to the Board or its committees not more than 90 calendar days from the time the circumstances upon which the price adjustment is based arise.
A bidding document and any resulting contract shall detail the payment terms that shall apply, and the payment terms shall specify the—
(a) payment method;
(b) payment structure;
(c) payment documents;
(d) payment period; and
(e) payment currency.
(1) A procuring and disposing entity shall agree with the provider on the method of payment that shall apply to any resulting contract.
(2) Where a bidder proposes a method of payment, the bidder shall be instructed to include the full costs thereof in the bid price.
(3) The method of payment shall be comprehensively defined in the resulting contract including the payment of the costs associated with the method preferred by the provider.
(4) The method of payment under any contract entered into in terms of these Regulations shall be acceptable to the Bank of Botswana.
(1) A procuring and disposing entity shall consider and state in the bidding documents and the resulting contract the payment structure for each procurement.
(2) The structure and amount of payments shall be determined for each procurement requirement by best practices, and such payment structures may include—
(a) advance payments;
(b) stage (or phased) payments, which shall be linked to specific deliverable or milestones and may be stated in percentage terms of the defined amount or specific amounts;
(c) regular interim payments, which shall be linked to specific contract events, such as installations or warranties; and
(d) retained payments, which shall be linked to specific contract events, such as installation or warranties.
(1) Except, as otherwise specified by government policy, and where best practices dictate, no contract shall be entered into by a procuring and disposing entity which require an advance payment.
(2) Except, as otherwise provided by government policy, 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 document in accordance with regulation 30(2)(e).
(3) An advance payment shall be recovered from subsequent payments due to the provider, which shall be subject to reduction in equal instalments over a period not exceeding fifty percent of the contract period.
(4) An advance payment may be made for such activities as—
(a) mobilisation costs in respect of the provision of works;
(b) start up costs in respect of the provision of services; and
(c) certain circumstances in respect of the provision of supplies, such as items that have to be specially or custom manufactured.
(1) Where the practices dictate, a contract may be entered into by a procuring and disposing entity in which interim or stage payments are permitted.
(2) Where interim or stage payments are permitted, they shall comply with the following conditions—
(a) payments shall be linked to specific and verifiable deliverables, contract events, time periods or work, which must be stated in the bidding documents and resulting 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 remained with the provider; and
(d) where a payment security is determined to be appropriate, the provisions of regulation 30(2)(e) shall apply.
(1) Where a procuring and disposing entity has determined that retained payments are appropriate, the contract shall detail—
(a) the percentage or amount of the total contract value to be retained;
(b) the period or the event at which the retention shall be released; and
(c) the documentation that shall evidence or certify the period or event in paragraph (b).
(2) A payment security may be permitted to be substituted for a retention payment in accordance with regulation 30(2)(e).
(1) No payment shall be made to a provider or in respect of deliverables due against works, services or supplies contracts without receipt of the deliverables detailed in the contract.
(2) Where a payment is made prior to receipt of deliverables—
(a) a payment security shall always be required and the requirement for a security shall be stated in the bidding documents;
(b) the security shall be in a form and from an institution that is acceptable to the Bank of Botswana or any other legally recognised financial institution, registered in Botswana;
(c) the security shall be in the format provided by the Board and provided in the bidding documents; and
(d) the security provided by the provider shall be valid for an agreed period beyond the final expected transaction date of the resulting contract or expected release date, as appropriate.
(1) A procuring and disposing entity shall clearly state, in the bidding document, the documents against which each payment is to be made.
(2) The documents referred to in subregulation (1) may include, but not limited to, documentation certifying the—
(a) delivery of the requirement or the receipt of the requirement by the consignee in accordance with delivery terms of the contract;
(b) itemised list of the requirements within packages delivered;
(c) insurance coverage of the delivered items;
(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, 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 of reports, manuals, guides, or other documentation required as a deliverable against a contract;
(i) completion of works or services required against a contract; and
(j) receipt of payment due to sub-contractors.
(3) Payment documentation from a provider shall always require an original invoice from the provider certifying the payment due.
(1) A procuring and disposing entity shall be responsible for organising payment to be made to the provider within 30 days of the certification of payment request.
(2) Except as otherwise provided in the tender document, the payment period shall be 30 days of the date of certification of invoice.
(3) Except as may be otherwise authorised by the Board, no payment to a contractor shall be ceded.
91. Payment and payment delays
(1) A procuring and disposing entity 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 provider to a procuring and disposing entity in accordance with the terms of the contract placed by the procuring and disposing entity.
(3) Upon receipt from a provider, of a payment request, the procuring and disposing entity shall, within five days of the date of receipt of the request, examine the payment request and ascertain if it is correct, accurate and in accordance with the terms of the contract.
(4) If the payment request is correct, accurate and in accordance with the terms of the contract, the procuring and disposing entity shall, within five days of the date of receipt of the payment request, certify it for payment and instruct the competent official to make full payment in accordance with the terms of the contract.
(5) If 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 as correct, and no payment shall be made.
(6) A payment request which is not certified as correct shall, within five days of the date of receipt of the request, be returned to the provider, detailing fully the reasons the presentation cannot be certified for payment.
(7) 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.
(8) The procuring and disposing entity 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 has been varied in the special conditions of the contract.
(9) A delay in payment to a provider shall attract interest at the prevailing commercial bank overdraft rate or such rate as may be stated in the bidding document, on a daily basis, for each day after the due date for payment.
(10) Notwithstanding the provisions of subregulation (3), the querying by a procuring and disposing entity of any part of a payment invoice from a provider shall not delay payment of the unchallenged portion of the invoice to the provider.
92. Currency for payment and limitations thereon
(1) A bidding document shall state any limitation on the currency of bidding or the currency of payment that may apply to a procurement proceeding or resulting contract.
(2) Unless otherwise stated in the solicitation or contract documents, the currency for bidding and payment shall be—
(a) Botswana Pula, for works, services and supplies originating in Botswana; and
(b) the currency of the expense or the currency of the providers country, for works, services or supplies originating outside Botswana or for imported parts or components of works, services or supplies originating outside Botswana, if such currency is a major trading currency.
93. Export and import licences
Unless otherwise provided by the delivery terms stated in a bidding document—
(a) a contract for procurement requirements that require export licences shall be the responsibility of the provider, but the procuring and disposing entity shall render any assistance necessary for the provider to process any application for export licences;
(b) a contract for procurement requirements that require import licences shall be the responsibility of the importer, but the procuring and disposing entity shall render any certification necessary to the importer to process any applications for import licences.
(1) A procuring and disposing entity shall ensure that insurance or indemnity cover is arranged to cover each procurement requirement, and the appropriate provisions shall be included in the bidding document and the draft contract.
(2) Where applicable, insurance or indemnity cover shall be arranged with Botswana insurance companies.
(1) Where a contract needs to be amended in order to change the original terms and conditions, a contract amendment shall be issued to the provider.
(2) A contract amendment shall be prepared, approved and issued in the same manner as the original contract and shall require the prior approval of the Board or any of its competent committees.
(3) A contract amendment shall be prepared by the procurement and disposal entity.
(4) No contract amendment shall be issued prior to—
(a) approval being obtained from the Board or any of its competent committees;
(b) funding being committed in the full amount of the amended contract price over the required period of the revised contract; and
(c) approval being obtained from all necessary bodies after the Board or any of its competent committees approval.
(5) A contract amendment for additional quantities of the same items shall use the same unit prices as the original contract.
(6) An individual contract amendment may be increased by up to 15 per cent of the original contract price without seeking the prior approval of the Board.
(7) . . .
96. Variation or change order to contract
(1) A contract variation or change order may be issued by the competent official, without the Boards or any of its competent committees approval only where the variation or change order is within the contingency element of a bid, or such limit as the Board may allow.
(2) Notwithstanding the provisions of subregulation (1), any additional funding required for a variation or change order shall be committed.
(3) A contract may be varied in accordance with a compensation event or the issue of a variation or change order or similar document, as provided for in the contract.
(4) A 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 competent official, as defined in the contract.
(5) A contract which provides for a variation or change order shall include a limit on such variation or change order, which limit shall not be exceeded without the issue of a contract amendment.
97. Contract amendments, variations or change orders
In this Part—
(a) “contract amendment” means a change to the terms and conditions of an awarded contract; and
(b) “contract variation” or “change order” means a change to the price, completion date or statement of requirements of a contract to facilitate adaptations to anticipated events or changes in requirements.
PART XI
Disposal of assets (regs 97-122)
98. Application of rules on disposal of public assets
(1) All activities relating to disposal of public assets shall be carried out in accordance with the rules set out in the Act, these Regulations and the guidelines.
(2) The provisions of these Regulations, in respect of procurement, shall apply to activities relating to the disposal of public assets, where appropriate.
(3) These Regulations shall not apply to public assets which are subject to the provisions of the Public Enterprises Evaluation and Privatisation Agency.
99. Records of disposal of public assets
(1) A procuring and disposing entity shall maintain records on its disposal proceedings of contracts management for a period of seven years from the date of a decision to terminate the disposal action, or the date of contract completion, whichever is the later, except where a contract is ongoing or is challenged, in which case the records shall be kept for an additional year after the completion of the contract or the settlement of the dispute, whichever is the earlier.
(2) The following records of a procuring and disposing entity shall be open to inspection by the competent authority during working hours—
(a) all records relating to the disposal process;
(b) all records relating to contracts management;
(c) all records of the Board or any of its committees; and
(d) any records of the Accounting Officer which relate to disposal, contracts management, disagreements with the Board or its competent committee, investigations of complaints or any other matter related to the Act or these Regulations.
(3) Every disposal of public assets shall contain the following documents, where appropriate—
(a) the request to initiate disposal proceedings;
(b) a copy of the published invitation notice, if any;
(c) a copy of the bidding documents and any amendments or clarifications thereto, and any additional information such as an auctioneer’s catalogue or general descriptive literature;
(d) the details of any visits to inspect the assets by potential bidders;
(e) the records of bid openings;
(f) copies of all bids evaluated and any clarifications issued and responses received;
(g) the evaluation report, if any;
(h) minutes of any meetings related to the disposal, including negotiations;
(i) the notice of award to the successful bidder, if any;
(j) the contract document, if any;
(k) all documents related to contract management, including, but not limited, to receipt of payment records and handing over certificates;
(l) a copy of the update to the procuring and disposing entity’s assets register;
(m) all correspondence between the procuring and disposing entity and bidders, auctioneers or third party disposal agents; and
(n) all submissions to the Board or its competent committee and all decisions related to the disposal method, approval of bidding documents, approval of evaluation reports, approval of negotiations and contract award, approval of contact documents and any decision to suspend or cancel disposal proceedings.
(1) Assets to be disposed of shall be grouped in contracts or lots in a manner which will attract the maximum possible competition.
(2) Where assets are to be disposed of through public auction, a procuring and disposing entity shall maximise the number of assets to be disposed of at one time in order to reduce the administration and transaction costs.
(3) A procuring and disposing entity may pool assets for purposes of common disposal.
101. Initiation of disposal requirements and approval for disposal
(1) The user department shall initiate the disposal process.
(2) Disposal requirements shall be documented using such format as the Board may prescribe.
(3) Disposal of assets shall be approved by the Board or its competent committee.
(4) Approval to commence disposal proceedings shall be evidenced by the signature of the Accounting Officer on the standard form documenting disposal requirements or by an official authorised by the Accounting Officer to so certify.
(5) 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 state the appropriate reference number from the asset register.
102. Selection of disposal method
A procuring and disposing entity shall select one of the disposal methods specified in this Part XII.
(1) A procuring and disposing entity shall obtain a valuation of the assets to be disposed of, prior to the commencement of any disposal proceedings.
(2) Notwithstanding the provisions of subregulation (1), no valuation of assets is required where the cost of the valuation is likely to be in excess of the money expected to be realised through the disposal process.
(3) Where required by existing legislation, the valuation of assets to be disposed of shall be done by the competent authority.
(4) A procuring and disposing entity shall use the valuation of assets to determine a reserve price, where appropriate, which shall be the minimum sale price of the asset.
(1) A bidding document or notice and any information made available to prospective bidders shall normally 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 as a bidding document.
(3) Notwithstanding the provisions of subregulation (1), a procuring and disposing entity shall include as full a description as possible of the assets to be disposed of and shall ensure that the information is accurate and not misleading.
(4) The description of the assets to be disposed of must address, where appropriate, the risk and cost associated with the dismantling and removal of assets upon conclusion of the disposal proceedings.
(5) No warranty shall be offered on the assets to be disposed of.
(6) Notwithstanding the provisions of subregulation (5), a procuring and disposing entity may, in exceptional circumstances, offer a warranty on the assets to be disposed of where the increase in the price received for the assets is likely to be greater than any costs associated with providing the warranty.
(1) A bidding document shall be drafted using the standard form issued by the Board.
(2) A bidding document shall include—
(a) a description of the 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;
(c) the location of the assets and arrangements for potential bidders to inspect the assets;
(d) the deadline, location and method for submission of bids;
(e) the arrangement for the bid opening;
(f) the qualification requirements to be met by bidders, if any;
(g) the method for evaluating bids and awarding a contract;
(h) the conditions of sale, if any;
(i) the requirements for payment of the sale price and handing over arrangements;
(j) a statement confirming that the risk and cost of dismantling and removal of the assets shall be the responsibility of the successful bidder; and
(k) details of any reservation scheme in operation.
(3) A procuring and disposing entity may sell solicitation documents.
(4) A procuring and disposing entity shall record the issue or sale of bidding documents using the standard form issued by the Board.
(5) A procuring and disposing entity shall publish public invitation notices in at least one newspaper of wide circulation in Botswana.
106. Advertisement and bidding periods
(1) Where the solicitation of bids is by invitation notice only, the period between the advertisement of the invitation notice and the date for bidding shall be a minimum of 10 days to allow sufficient time for potential bidders to inspect the assets.
(2) Where the solicitation of bids is by invitation notice and bidding document, the advertising period shall be a minimum of 14 days.
(3) Where written bids are required, the bidding period shall be specified in the section of the bidding document, taking into account the following factors—
(a) the need to allow sufficient time for potential bidders to inspect the assets prior to bidding;
(b) the level of detail required in the bids; and
(c) the time required for preparation and delivery of bids to the procuring and disposing entity.
(1) A procuring and disposing entity shall ensure that potential bidders are offered a reasonable opportunity to inspect the assets to be disposed of before the date or deadline for bidding.
(2) An arrangement for the inspection of the assets to be disposed of shall be included in the invitation notice and in the bidding documents, where appropriate.
(1) A bid may be either—
(a) oral, in case of auctions; and
(b) written, in all other cases.
(2) Where a bid is written, the procuring and disposing entity shall require the bidder to submit a sealed, written bid.
(3) A bidding document shall contain instructions to bidders on—
(a) the format and documentation required in a bid;
(b) the procedure for signing and authorising bids; and
(c) the number of copies of bids to be submitted, which shall be one original bid, marked ORIGINAL, and a specified number of copies, marked COPY.
(1) Where a bid is oral, the procedure for bidding shall be specified by the auctioneer in accordance with normal auction practices.
(2) Where a bid is written, it shall be submitted in a plain outer envelope, securely sealed in such a manner that opening and resealing cannot be achieved undetected.
(3) A bidder may choose their preferred method of envelope sealing, but the procuring and disposing entity shall reject any envelope, at the opening, that is unsealed.
(4) A bidding document shall contain instructions on the details of labeling and references to be detailed on each envelope, which shall include at least—
(a) the disposal reference number;
(b) the name of the bidder;
(c) the words “WITHDRAWAL” or “REPLACEMENT”, where bids are being withdrawn or replaced; and
(d) the words “NOT TO BE OPENED BEFORE THE BID OPENING”.
(1) A bidder may withdraw a written bid at any time before the deadline for submission of bids.
(2) A withdrawal of a bid shall be by submission of a letter notifying the procuring and disposing entity of the withdrawal, which letter shall be authorised and submitted in the same way as the bid.
(3) A withdrawal letter in respect of a bid shall be opened, read out and recorded at the bid opening.
(4) A bidder who withdraws their bid may submit a new bid in accordance with the provisions of the bidding document.
(5) A submitted bid may be amended at any time before the deadline for submission of bids.
(6) An amendment of a bid shall be by the withdrawal of the original bid and the submission of a new bid.
(7) An oral bid shall not be withdrawn, except where a notice of withdrawal, as provided for in subregulation (2), is given by the bidder to the procuring and disposing entity within a period of 48 hours of the bidding.
(1) Where written bids are required, the receipt of bids and the bid closing process shall be in accordance with the provisions of regulation 38.
(2) Every bid closing shall be recorded.
(1) Where written bids are required, the bid opening may be either by way of—
(a) public bid opening; or
(b) non public bid opening.
(2) The bid opening process shall be in accordance with the provisions of regulation 38.
(3) Every bid opening shall be recorded.
(4) Except where otherwise provided for in these Regulations, a procuring and disposing entity shall not declare the best evaluated bid or contract award at the bid opening or any re-bidding procedure.
(1) The evaluation of bids shall be based either—
(a) on price only; or
(b) 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-user restrictions;
(b) there are export restrictions; or
(c) there is need to attach conditions to the sale.
114. Re-bidding due to identical bids
(1) Where written bids have been requested and the highest priced bid has been submitted by more than one bidder, the procuring and disposing entity shall arrange a re-bidding procedure, where only the bidders who submitted identically priced bids are invited to submit a revised bid.
(2) No bidder, other than those who submitted the identical highest priced bids, shall be permitted to submit a revised bid or participate in the re-bidding procedure in any way.
(3) The revised bid referred to in subregulation (2) shall contain a revised price only, and the bidders shall not be permitted to change, in any way, the terms and conditions, technical details, documentation or any other aspect of their original bid, other than the price.
(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 regulation 115, and it is reasonable to conduct and conclude the evaluation immediately in the presence of bidders at a public bid opening, the procuring and disposing entity may, if the bidders concerned so agree, conduct the rebidding procedure immediately.
(7) The bid opening procedure for the revised bids shall be the same as for the original bids.
(8) The evaluation of the revised bids 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 that the original bid price shall be rejected under this regulation.
(10) Where identical highest priced bids are received during a re-bidding procedure, a further re-bidding procedure shall be held in accordance with this regulation.
(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.
115. Evaluation based on price only
(1) Where the evaluation, in respect of an asset to be disposed of, 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 team shall—
(a) correct any arithmetic errors;
(b) convert the bids to a common currency; and
(c) compare the bid price with the valuation of the asset or reserve price, where appropriate.
(3) Where it is reasonable to conduct and conclude the evaluation immediately in the presence of bidders at a public bid opening, the procuring and disposing entity may do so for the purpose of establishing whether the highest priced bid has been submitted by more than one bidder and a rebidding procedure is necessary in accordance with regulation 114.
(4) Notwithstanding the provisions of subregulation (3), a procuring and disposing entity shall not declare the best evaluated bid or contract award at the bid opening or any re-bidding procedure.
116. Evaluation based on price and other factors
(1) Where the evaluation is based on price and other factors, the eligibility requirements or evaluation criteria and methodology shall be stated in the bidding document.
(2) The eligibility requirements referred to in subregulation (1) shall be evaluated on a pass or fail basis.
(3) A procuring and disposing entity 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, but the use of such evaluation criteria shall be fully justified and approved by the Board or its competent committee prior to the issue of the bidding documents.
(6) The evaluation under this regulation shall use the following methodology—
(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) application of any other evaluation factors in the manner stated in the bidding document;
(c) price evaluation to—
(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 assets or reserve price, where appropriate.
(7) A recommendation for a contract award shall be in accordance with the methodology in the bidding documents.
(8) 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.
(9) 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), a contract award shall be recommended to the bidder with the best evaluated bid, in accordance with the methodology stated in the bidding document.
117. Evaluation teams and reports
(1) Where bids are oral under the public auction method, no evaluation team or evaluation report shall be required.
(2) Notwithstanding the provisions of subregulation (1), the name of the successful bidder and the contract price shall be reported to the Board or its competent committee.
(3) Where written bids are received, the evaluation shall be conducted by an evaluation team, in accordance with the provisions of these Regulations.
(4) Where bids are written, an evaluation report shall be produced and submitted to the Board or its competent committee for approval, prior to contract award.
(5) Where evaluation is on the basis of price only, the evaluation report shall detail—
(a) the price of each bid opened;
(b) the correction of any arithmetic errors and the conversion to a common currency, if necessary;
(c) a comparison of the price of the bid with the valuation or reserve price, if any, and an assessment of whether the bid price offers the best available return for the procuring and disposing entity;
(d) a statement of the best evaluated bid;
(e) a recommendation as to whether negotiations are needed prior to the award of the contract; and
(f) a recommendation for an award of the contract or any reservations in regard to the valuation or reserve price.
(6) Where evaluation includes factors, other than price, the evaluation report shall detail—
(a) whether a bidder was eligible or not eligible;
(b) the results of the application of any other evaluation criteria relevant to public interest;
(c) the price of each bid opened;
(d) the correction of any arithmetic errors and the conversion to a common currency, if necessary;
(e) a comparison of the price of the bid against the evaluation criteria and whether the bid offers the best available return for the procuring and disposing entity;
(f) a statement of the best evaluated bid;
(g) a recommendation as to whether negotiations are needed prior to the award of the contract; and
(h) a recommendation for an award of the contract or any reservations with regard to the valuation or reserve price.
118. Negotiations under competitive methods
(1) Post-bid negotiations may be undertaken where—
(a) the highest bid falls short of the reserve price, valuation or anticipated sale price of the assets; or
(b) there is a need to negotiate the conditions of sale.
(2) Following approval of the evaluation report, the procedure for negotiation shall be as follows—
(a) the evaluation team shall detail the nature of the proposed negotiations, listing the points that are to be clarified or discussed and the objectives to be obtained in a negotiations plan;
(b) the Board or its competent committee shall approve the negotiation plan prior to any negotiations taking place;
(c) negotiations shall be held with the best evaluated bidder, with at least three members of staff of the procuring and disposing entity present, except that the members of staff of the procuring and disposing entity, at the negotiations, shall not commit the procuring and disposing entity, to any arrangement, but shall seek the approval of the Board or any of its committees prior to confirming any agreement reached;
(d) the negotiations team shall report, in writing, to the Board or any of its committees on the achievements of the negotiations in relation to the objectives of the negotiation document and shall submit minutes of the meeting. The report shall state whether the negotiation objectives have been substantially achieved and shall contain a recommendation to—
(i) proceed with the contract award to the recommended bidder, incorporating the agreements reached during negotiations,
(ii) revise the negotiation objectives and hold further negotiations, or
(iii) terminate the negotiations, reject the bidder and invite the next ranked bidder for negotiations.
(3) The Board or any of its committees may—
(a) approve the recommendations;
(b) request further negotiations on specific points,
(c) reject the recommendations and give reasons therefor; or
(d) cancel the negotiations in their entirely.
(4) The results of any approved negotiations shall be incorporated into the contract document.
(5) If negotiations are commenced with the next ranked bidder, the procuring and disposing entity shall not reopen earlier negotiations and the original bidder shall be informed of the reasons for termination of the negotiations.
119. Negotiations under direct negotiation
(1) Under direct negotiation, negotiations are not permitted until after a written bid has been received and evaluated.
(2) The procedure for negotiation, under direct negotiation, shall be—
(a) the procuring and disposing entity shall issue a written request for a bid;
(b) submission of a written bid shall be required;
(c) the evaluation team shall evaluate the bid received for compliance with the written invitation, compare the bid price with the professional valuation and apply any other evaluation criteria;
(d) the evaluation team shall detail the nature of the proposed negotiations, listing the points that are to be clarified or discussed and the objectives to be obtained in a negotiations plan;
(e) the Board or any of its committees shall approve the negotiations plan prior to any negotiations taking place;
(f) negotiations shall be held with the bidder, with at least three members of staff of the procuring and disposing entity present except that the members of staff of the procuring and disposing entity shall not, at the negotiations, commit the procuring and disposing entity to any arrangements, but shall seek the approval of the Board or any of its committees prior to confirming any agreement reached;
(g) the negotiations team shall report, in writing, to the Board or any of its committees on the achievements of the negotiations in relation to the objectives of the negotiations document and shall submit minutes of the meeting; and
(h) the Board or any of its committees may—
(i) approve the outcome of the negotiations in their entirety,
(ii) request further negotiations on specific points, or
(iii) reject and cancel the negotiations in their entirety.
(3) The results of any approved negotiations shall be incorporated into the contract document.
120. Failure to reach the reserve price
(1) Where the best evaluated bid is less than the reserve price, the accounting officer, in consultation with the Board or any of its committees, may—
(a) obtain a further valuation from an independent source;
(b) negotiate the price with the best evaluated bidder;
(c) arrange for new bids to be submitted;
(d) use an alternative method of disposal, which is likely to obtain a higher price; or
(e) sell the assets at the reduced price;
(2) In deciding on the appropriate action to be taken under subregulation (1), the Board or any of its committees and the Accounting Officer shall take into consideration—
(a) the difference between the best evaluated bid and the valuation or reserve price; and
(b) the likely costs of the action.
An award of contract shall—
(a) in the case of a public auction, be by a declaration of the successful bidder at the time of bidding; or
(b) in the case of all other methods of disposal, be by a decision of the Board or any of its committees.
(1) Where a contract award is by a decision of the Board and its competent committee, a contract placement shall be by the issue of a contract document to the successful bidder.
(2) The contract document shall be as specified in the bidding document.
(3) No communication, in any form, that would bind the procuring and disposing entity to a contact with the provider shall be permitted prior to approval of the award of contract by the Board or any of its committees.
(4) 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;
(c) the date for delivery or collection of the assets;
(d) who is responsible for transporting the asset;
(e) the hand-over 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 assets.
(5) All contract awards shall be advertised by publication of a notice on the procuring and disposing entity’s procurement and disposal notice board using the specified format.
(6) Where a bidder fails to make payment, in accordance with the terms of the disposal contract, the contract may be terminated, and a contract may be entered into with the next best bidder, if such bidder is known.
PART XII
Methods for disposal of public assets (regs 123-138)
123. Selection of disposal method
(1) A procuring and disposing entity may select one of the following disposal methods—
(a) public auction;
(b) sealed bidding;
(c) direct negotiations;
(d) trade-in;
(e) transfer to another procuring and disposing entity;
(f) conversion or classification of assets into another form; or
(g) destruction of assets.
(2) A procuring and disposing entity shall, when selecting a disposal method for an asset, take into account the following factors—
(a) the potential market value of the asset;
(b) the volume of the asset;
(c) the number and location of potential bidders;
(d) the location of the asset;
(e) any restrictions on export or end-users;
(f) national security or public interest issues;
(g) legal or human rights issues;
(h) environmental considerations;
(i) the trade-in value of the asset; and
(j) the possibility of transferring the asset to another procuring and disposing entity.
124. Conditions for use of public auction
(1) Disposal by public auction shall be used where there is a high volume of low value assets for which there is a large number of potential bidders and there are no conditions, end-user or export restrictions attached to the sale.
(2) Disposal by public auction may also be used where—
(a) there is a large number of potential bidders for unusual or high value assets; or
(b) there is a variety of assets to be disposed of in one location and an onsite auction could be arranged to avoid transport costs.
125. Conditions for use of public bidding
Disposal by public bidding may be used—
(a) for high-value or unique assets;
(b) for assets located in remote areas;
(c) for assets that have a geographically dispersed potential market;
(d) for assets with end-user or export restrictions attached to their sale; or
(e) where conditions need to be attached to the sale, or post bid negotiations may be required.
126. Conditions for use of direct negotiations
(1) Disposal by direct negotiations 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 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 the market rate;
(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 asset at the market rate.
(2) A detailed justification for the use of direct negotiation shall be approved by the Board of the competent committee prior to the commencement of disposal proceedings.
127. Conditions for use of trade-ins
(1) Disposal by 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 and disposal process.
128. Conditions for use of disposal by transfer to another procuring and disposing entity
(1) Disposal by transfer to another procuring and disposing entity may be used where another procuring and disposing entity is able to make further use of the asset.
(2) The cost of disposal by transfer from one procuring and disposing entity to another shall be agreed between the two procuring and disposing entities concerned.
(3) The transfer referred to in subregulation (1) may be at no cost if it is uneconomical to charge for the asset.
129. Conditions for use of disposal by conversion or classification of assets into another form
Disposal by conversion or classification of assets 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.
130. Conditions for use of disposal by destruction of assets
Disposal by destruction of assets is the least favoured method of disposal, but may be used—
(a) on the grounds of national security or public interest, legal or human rights issues or environmental considerations; or
(b) where the asset has no residual value and it cannot be transferred to another procuring and disposing entity or converted or classified into another form with any value.
(1) The disposal process under public auction shall follow the disposal process set out in subregulations (2) to (15).
(2) Any submission to the Board or any of its committees in respect of disposal by public auction shall be made in such format as the Board may prescribe.
(3) When undertaking disposal by public auction, the procuring and disposing entity shall appoint a professional auctioneer to conduct the process on its behalf.
(4) Any valuation of assets to be disposed of by public auction may be done by the auctioneer, who will be responsible for disposing of the assets.
(5) Bids relating to assets for disposal by public auction shall be solicited through a notification of public auction using such format as the Board may prescribe.
(6) No formal bidding documents shall be issued in relation to assets for disposal by public auction, and any additional information, such as an auctioneer’s catalogue shall be for information purposes only and shall not be considered a bidding document.
(7) Bids in relation to assets for disposal by public auction shall be oral and the procedure for bidding shall be specified by the auctioneer in accordance with normal auction practices. There shall be no minimum bidding period.
(8) Bids, at a public auction, shall be evaluated on the basis of price only.
(9) Negotiations shall not be permitted under the disposal by public auction method.
(10) 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.
(11) A written contract document shall not be required under disposal by public auction.
(12) The successful bidder shall be required to pay at least 50 per cent of the contract price, immediately after the award of contract.
(13) The successful bidder shall be required to pay the balance of the contract price within five days of the award of contract.
(14) Where a bidder fails to make payment, in accordance with subregulations (12) and (13), the contract may be terminated.
(15) The disposal process followed for public auction, shall be based on standard documentation approved by the Board.
132. Appointment of an auctioneer
(1) When undertaking disposal by public auction, the procuring and disposing entity shall appoint a professional auctioneer to conduct the process on its behalf, and such auctioneer shall be licensed.
(2) An auctioneer shall be appointed using the appropriate procurement method for services, which method shall take into account such criteria as—
(a) the auctioneer’s commission rates;
(b) the locations of the auctioneers and transport costs for the assets to be disposed of;
(c) the auctioneer’s facilities;
(d) the auctioneer’s ability to achieve optimum returns;
(e) the past performance and integrity of the auctioneer;
(f) the viability of the auctioneer’s business; and
(g) the provision of any performance bond in the format and form required by the procuring and disposing entity
(3) The appointment of an auctioneer shall be confirmed through a written contract, which shall include the following—
(a) the commission rate and any other fees payable to the auctioneer and the payment terms;
(b) the method and timing for payment of proceeds to the procuring and disposing entity;
(c) responsibility for and payment of any transport costs, including costs for any assets returned unsold;
(d) the date on which, or the period within which, the auction will be held; and
(e) the information and any conditions of sale to be included in the auction notice, auctioneer’s catalogue or any similar document.
(4) The procuring and disposing entity shall ensure that a receipt is received for all assets delivered to, or collected by, the auctioneer.
(1) The disposal process under public bidding shall follow the disposal process set out in subregulations (2) to (13).
(2) Any submission to the Board or any of its committees in respect of disposal by public bidding shall be made using such format as the Board may stipulate in the guidelines.
(3) Bids shall be solicited by the publication of a public invitation notice using such format as the Board may prescribe, indicating that interested bidders may obtain the bidding document from the procuring and disposing entity.
(4) Bidding documents may be sold under public bidding:
Provided that the cost of the documents shall be calculated to cover only the cost of copying and issuing the documents and shall not include any element of profit for the procuring and disposing entity.
(5) The minimum bidding period under public bidding shall be 10 days.
(6) The procuring and disposing entity shall require the bidder to submit sealed, written bids.
(7) The bid opening process shall be a public bid opening in accordance with the provisions of these Regulations.
(8) Evaluation based on price only shall be the preferred evaluation methodology under public bidding.
(9) Evaluation based on price and other factors may be used, in public bidding, in accordance with these Regulations.
(10) Post-bid negotiations may be undertaken under public bidding in accordance with the conditions and procedures in these Regulations.
(11) Contract award shall be by a decision of the Board or its competent committee in response to a recommendation from the procuring and disposal entity.
(12) Contract placement shall be by way of issue of a contract document to the successful bidder
(13) The standard documentation used and disposal process followed for public bidding shall be in accordance with such format and process as the Board may prescribe.
(1) The disposal process under direct negotiations shall follow the disposal process set out in subregulations (2) to (13) of this regulation.
(2) Submissions to the Board or any of its committees, in respect of disposal by direct negotiations, shall be made in such format as the Board may prescribe.
(3) A valuation shall always be obtained where an asset is to be disposed of through direct negotiation.
(4) A bid, under direct negotiations, shall be solicited through the issue of a written bidding document which shall be based on the appropriate standard document.
(5) There shall be no minimum bidding period for disposal by direct negotiation.
(6) The procuring and disposing entity shall require the bidder, under direct negotiations, to submit a sealed, written bid.
(7) The bid opening process under direct negotiation shall be a non-public bid opening in accordance with these Regulations.
(8) Evaluation based on price only shall be the preferred evaluation methodology under direct negotiation.
(9) Evaluation based on price and other factors may be used, under direct negotiation, in accordance with these Regulations.
(10) Post-bid negotiations may be undertaken under direct negotiations in accordance with these Regulations.
(11) Contract award shall be by a decision of the Board or its competent committee in response to a recommendation from the procuring and disposal entity.
(12) Contract placement shall be by way of issue of a contract document.
(13) The standard documentation used and the disposal process followed for direct negotiations shall be in accordance with such format as the Board may prescribe.
(1) A procuring and disposing entity shall obtain a valuation of the asset where the asset is to be disposed of through trade-in.
(2) Under disposal by trade-in, the disposal process shall be an integral part of the relevant procurement process and shall follow the procurement rules in Part III.
(3) A procuring and disposing entity shall, during the disposal process, use the appropriate procurement method in accordance with the provisions of Part V:
Provided that the estimated trade-in value shall not be deducted from the estimated value of the procurement in selecting the appropriate procurement method.
(4) A procuring and disposing entity shall obtain an approval from the Board or any of its committees to include the trade-in requirement in the procurement prior to the commencement of the procurement proceedings.
(5) The bidding document and any invitation notice, where an asset is to be disposed of through trade-in, shall clearly state that the procurement involves a trade-in arrangement.
(6) The bidding document, where an asset is to be disposed of through trade-in, shall be drafted using the appropriate procurement document issued by the Board.
(7) The advertisement of the opportunity, issue of solicitation documents, bidding period and the receipt and opening of bids, where an asset is to be disposed of through trade-in, shall be in accordance with these Regulations.
(8) The evaluation of bids where an asset is to be disposed of through trade-in, shall be done in the appropriate methodology for the procurement requirement.
(9) The trade-in value offered for the asset to be disposed of through trade-in shall be included in the financial evaluation only in the manner stated in the bidding document.
(10) The evaluation of the trade-in offers shall be clearly stated in the evaluation report.
(11) Where factors, other than price, need to be taken into account in the disposal process, disposal by trade-in shall not be used.
(12) Negotiations may be permitted in accordance with the relevant rules on procurement.
(13) An award of contract shall be in accordance with the relevant rules on procurement.
(14) The contract document shall be in the form of the procurement document issued by the Board.
(15) Responsibility for contracts management of the procurement contract and the disposal element shall be clearly defined within the procuring and disposing entity, and where separate staff are responsible for each element, they shall work together, as appropriate.
(16) The standard documentation used and disposal process followed in trade-in shall be in accordance with such format as the Board may prescribe.
136. Transfer to another procuring and disposing entity
(1) Submissions to the Board or any of its committees in respect of disposal by transfer to another procuring and disposing entity shall be made in such format as the Board may prescribe.
(2) Where disposal is by transfer to another procuring and disposing entity, the arrangements for the transfer shall be discussed and agreed between the two entities.
(3) The agreement referred to in subregulation (2) shall include—
(a) the cost to be paid by the beneficial entity, which costmay be none if it is uneconomic to charge for the asset;
(b) any subsidiary, linked assets to be included in or excluded from the transfer;
(c) the date for the transfer;
(d) responsibility for transporting the asset;
(e) the hand-over procedure and any documentation to be transferred;
(f) the mechanism and date for payment for any cost; and
(g) who is responsible for any legal obligations linked to the asset.
(4) The arrangements for the transfer to another procuring and disposing entity shall be confirmed in writing using such format as the Board may prescribe and such arrangements shall be approved and signed by the accounting officers of both procuring entities.
(5) The recipient procuring and disposing entity shall issue an authorised receipt of the assets to the originating procuring and disposing entity.
(6) The standard documentation used and disposal process followed for transfer to another procuring and disposing entity shall be in accordance with such format and process as the Board may prescribe.
(1) Submissions to the Board or any of its committees in respect of disposal by destruction of assets shall be made using such format as the Board may prescribe.
(2) Where disposal is by destruction of assets, the procuring and disposing entity shall either—
(a) undertake the destruction itself; or
(b) identify the competent authority or an appropriate provider to undertake the destruction.
(3) A procuring and disposing entity shall obtain approval from the accounting officer prior to the destruction of an asset being undertaken.
(4) The method of destruction of an asset under disposal by destruction of assets shall be appropriate to—
(a) the assets being disposed of; and
(b) the circumstances giving rise to the destruction, including any grounds of national security or public interest.
(5) A signed certificate of destruction shall be obtained from the authorised official within the procuring and disposing entity, competent authority or provider and shall be kept as part of the record of disposal proceedings.
FIRST SCHEDULE
CERTIFICATE OF AVAILABILITY OF FUNDS FOR PROCURING PURPOSES
(regulation 7(4))
<OB:FO:”SI4208_2007p54.gif”,6.07361,6.66319
SECOND SCHEDULE
PROCUREMENT REQUIREMENTS
(regulation 27(1))
<OB:FO:”SI4208_2007p55.gif”,8.72917,5.46875
THIRD SCHEDULE
PRE-QUALIFICATION REQUIREMENTS
(regulation 28(4))
PART I
CONTRACTOR’S STATEMENTS OF EXPERIENCE
<OB:FO:”SI4208_2007p56.gif”,6.09444,7.63125
<OB:FO:”SI4208_2007p57a.gif”,5.91597,2.06319
PART II
CONTRACTOR’S FINANCIAL STATEMENT
(The certificate of a Public Accountant must be attached. Complete report prepared by Accountant may be substituted.)
<OB:FO:”SI4208_2007p57b.gif”,5.98958,4.73958
<OB:FO:”SI4208_2007p58.gif”,5.87361,7.68403
PART III
CERTIFICATE OF PUBLIC ACCOUNTANT
(Certification prepared, signed and included in report prepared by Accountant may be substituted.)
<OB:FO:”SI4208_2007p59.gif”,6.04236,7.88403
Note: This review consists principally of inquiries of management and appropriate analytical procedures applied to this financial data. It is substantially less in scope than an examination in accordance with generally accepted auditing standards, the objectives of which is the expression of an opinion regarding financial statements as a whole. Accordingly, we have not expressed such opinion.
Special note to Accountant:
The above certificate should be issued by an independent public accountant or statutory auditors of the firm, who are not in the employ of the company/firm and not Directors, Partners or co-owners of the company /firm.
FOURTH SCHEDULE
PART I
QUALITY AND COST BASED SELECTION EVALUATION STAGES
(regulation 43(3))
STAGE ONE
Evaluation
The evaluation of a bid shall be conducted, following the opening of a technical bid, by—
(a) conducting a preliminary examination to determine whether or not a bid is qualified and to determine its responsiveness to the terms of the bidding document; and
(b) failing and eliminating from further evaluation a bid determined to be non-responsive and non qualified.
STAGE TWO
Technical Evaluation
1. The technical evaluation of a bid shall be conducted by means of—
(a) evaluating each bid against the technical evaluation criteria;
(b) marking, on a scale of 1 to 100 each criterion; and
(c) weighing of the marks attained by each technical bid and recording them as technical scores.
2. (1) The technical evaluation of a bid shall be conducted in accordance with the following procedure—
(a) the procuring entity shall normally divide the criteria into sub-criteria to assist in the assessment of technical bids;
(b) each bid shall be compared to the minimum qualifying technical mark, and a bid which does not reach the minimum shall be eliminated from further evaluation;
(c) the bidding document shall state the technical evaluation criteria, the weights and the qualifying score;
(d) the procuring unit shall prepare a technical evaluation report of the technical bids received and such report shall—
(i) substantiate the results of the evaluation,
(ii) describe the relative strengths and weaknesses of the bids,
(iii) indicate which bids are recommended to proceed to the cost evaluation, and (iii) be approved by the evaluation committee prior to the cost evaluation;
(e) the following weights are indicative, under paragraph 1(c), and may be adjusted to the specific circumstances of the procurement—
|
Specific experience: |
5 to 10 points |
|
Methodology proposed: |
20 to 50 points |
|
Key personnel: |
30 to 60 points |
|
Transfer of knowledge: |
0 to 10 points |
|
Participation by nationals: |
0 to 10 points |
|
Total |
100 points |
(f) all records relating to the evaluation, such as individual mark or score sheets shall be retained until completion of the procurement.
3. A bidder who has secured the qualifying score shall be notified and be advised of the date and time set for the opening of financial bids, in accordance with the following
(a) the opening date of financial bids shall not be sooner than two weeks following the notification date;
(b) financial bids shall be opened publicly; and
(c) the name of the bidder, the technical score and the bid price shall be read out at the public opening.
STAGE THREE
Cost Evaluation
1. (1) A cost evaluation of a bid shall be conducted by reviewing the—
(a) financial bids to correct any arithmetic errors; and
(b) conversion of bids to a single currency as stated in the invitation to bid.
(2) For the purposes of evaluation, cost shall exclude local taxes, but shall include other reimbursable expenses, such as travel, translation, printing of the report or secretarial expenses.
2. (1) A bid shall be rated by giving a financial score of—
(a) 100 to the bid with the lowest cost; and
(b) an inversely score, proportional to the lowest bid cost, to other bids.
(2) Alternatively a directly proportional cost or other methodology may be used in allocating a mark for the cost, provided that such methodology is fully described in the Invitation to Bid.
3. (1) The total score shall be obtained by—
(a) weighting the technical and cost scores; and
(b) adding the technical and cost scores together to obtain the combined score.
(2) The weight for the cost shall normally be between 10 and 20, but, in no case shall it be greater than 30 points out of a total of 100.
(3) The weight for the cost score shall be chosen by considering the—
(a) complexity of the assignment; and
(b) the relative importance of the technical aspect of the bids.
(4) The method proposed for the weighting of the costs and technical scores shall be stated clearly in the invitation to bid.
(5) The bidder obtaining the highest total score shall be recommended for an award of a contract, subject to any negotiations that may need to be held, and such negotiations shall be carried out in accordance with the provisions of these Regulations.
PART II
QUALITY-BASED SELECTION EVALUATION STAGES
(regulation 45(2))
STAGE ONE
Preliminary Examination of Technical Bid
1. Following the opening of a technical bid, a preliminary examination shall be conducted to determine—
(a) whether a bidder has qualified, on the basis of having passed or failed the selection, for the bid; and
(b) the responsiveness of bids to the terms of the bidding document.
2. A bid that fails to qualify or that is found to be non-responsive to the terms of the bidding document shall be eliminated from further evaluation.
STAGE TWO
Technical Bid Evaluated Against Technical Evaluation Criteria
1. A technical evaluation of a bid shall be conducted—
(a) to evaluate each technical bid against the technical evaluation criteria; and
(b) following the same method of evaluation as that utilised for the QCBS selection.
2. (1) The Evaluation Committee shall prepare a technical evaluation report of the technical bids received, which shall—
(a) substantiate the results of the evaluation;
(b) describe the relative strengths and weaknesses of the bids; and
(c) indicate which bid is recommended to proceed to the Cost Evaluation.
(2) The technical evaluation report shall be approved by the Contracts Committee prior to the Cost Evaluation.
STAGE THREE
Cost Evaluation
1. A cost evaluation shall be conducted by the—
(a) bidder who submitted the best evaluated technical bid being invited to submit a financial bid, where only technical bids were submitted; or
(b) opening of the financial bid of the bidder who submitted the best evaluated technical bid, where both technical and financial bids were submitted under the dual envelope method.
2. The financial bid shall be negotiated by the procuring entity in accordance with the provisions of these Regulations.
PART III
FIXED BUDGET SELECTION EVALUATION STAGES
(regulation 46(3))
STAGE ONE
Preliminary Examination
1. Following the opening of a technical bid, a preliminary examination shall be conducted to determine—
(a) Whether a bidder has qualified, on the basis of having passed or failed the selection for the bid; and
(b) the responsiveness of bids to the terms of the bidding document.
2. A bid that fails to qualify or that is found to be non-responsive to the terms of the bidding document shall be eliminated from further evaluation.
STAGE TWO
Technical Bid Evaluated Against Technical Evaluation Criteria
1. A technical evaluation of a bid shall be conducted—
(a) to evaluate each technical bid against the technical evaluation criteria; and
(b) following the same method of evaluation as that utilised for the QCBS selection.
2. (1) The Evaluation Committee shall prepare a technical evaluation report of the technical bids received, which report shall—
(a) substantiate the results of the evaluation;
(b) describe the relative strengths and weaknesses of the bids; and
(c) indicate which bid is recommended to proceed to the Cost Evaluation.
(2) The Evaluation Committee shall prepare and approve a technical evaluation report prior to the commencement of a cost evaluation.
3. (1) Each bidder shall be advised of the date and time set for the opening of the financial bids.
(2) Financial bids shall be opened publicly and at the public opening there shall be publicly read out the—
(a) name of the Bidder;
(b) technical score; and
(c) bid price.
STAGE THREE
Cost Evaluation
1. A cost evaluation shall be conducted, and any bid that exceeds the budget shall be eliminated.
2. Subject to any negotiations that may need to be held, the bidder who has submitted the highest ranked technical bid, of bids submitted within the budget, shall be recommended for the award of contract.
3. Negotiations shall be carried out in accordance with the provisions of these Regulations.
PART IV
LEAST COST SELECTION SUPPLIES AND WORKS EVALUATION STAGES
(regulation 47(4))
STAGE ONE
Preliminary Examination
1. A preliminary examination of a bid shall be conducted to determine—
(a) whether a bidder has qualified, on the basis of having passed or failed the selection for the bid; and
(b) the responsiveness of bids to the terms of the bidding document.
2. A bid that fails to qualify or that is found to be non-responsive to the terms of the bidding document shall be eliminated from further evaluation.
STAGE TWO
Technical Evaluation
A technical evaluation shall be made to determine technical compliance with the specification or scope of works in the bidding document, only for bids that have, in terms of paragraph 1 of Stage One—
(a) qualified;
(b) been responsive.
Technically non-compliant bids shall be eliminated from further evaluation.
STAGE THREE
Cost Evaluation
1. A cost evaluation only of technically compliant bids shall be conducted to—
(a) correct arithmetical errors; and
(b) convert bids to a common currency.
2. An evaluation committee may regard a bid as responsive or technically compliant if it contains—
(a) minor deviations that do not materially alter or depart from the characteristics, terms, conditions and other requirements set forth in the bidding documents;
(b) errors or oversights that are capable of being corrected without touching on the substance of the bid.
3. Any minor deviations shall be—
(a) quantified, to the extent possible;
(b) appropriately taken account of in the evaluation and comparison of bids; and
(c) clearly stated in the evaluation report.
4. The evaluation committee shall prepare an evaluation report of the bids received, which shall contain details of the—
(a) results of the evaluation;
(b) reasons for the rejection of any bids; and
(c) recommendation for the award of contract.
PART V
LEAST COST SELECTION SERVICES-EVALUATION STAGES
(regulation 48(3))
STAGE ONE
Preliminary Examination
1. A preliminary examination shall be conducted to determine—
(a) whether a bidder has qualified, on the basis of having passed or failed the selection for the bid; and
(b) the responsiveness of bids to the terms of the bidding document.
2. A bid that fails to qualify or that is found to be non-responsive to the terms of the bidding document shall be eliminated from further evaluation.
STAGE TWO
Technical Bid Evaluated Against Technical Evaluation Criteria
1. A technical evaluation of a bid shall be conducted—
(a) to evaluate each technical bid against the technical evaluation criteria; and
(b) following the same method of evaluation as that utilised for the QCBS selection.
2. A bidder who does not secure the qualifying score shall be eliminated from the evaluation.
3. The evaluation committee shall prepare a technical evaluation report which shall be approved by the contracts committee prior to the cost evaluation.
4. (1) Bidders who have secured the qualifying score shall be notified and be advised of the date and time set for the opening of the financial bids.
(2) The opening date of the financial bids shall be a date two weeks after the notification date referred to in subparagraph (1).
(3) Financial bids shall be opened publicly, and, at the public opening, there shall be publicly read out the—
(a) name of the bidder;
(b) technical score; and
(c) bid price.
STAGE THREE
Cost evaluation
1. (1) A cost evaluation shall be conducted by reviewing the—
(a) financial bids to correct any arithmetic errors; and
(b) conversion of bids to a single currency as stated in the invitation to bid.
(2) For the purposes of evaluation, cost shall exclude local taxes, but shall include other reimbursable expenses, such as travel, translation, printing of the report or secretarial expenses.
2. (1) Subject to any negotiations that may need to be held, the bidder who has submitted the lowest priced bid of all bids that have met the qualifying score, shall be recommended for the award of contract.
(2) Negotiations shall be carried out in accordance with the provisions of these Regulations.
PART VI
QUALIFICATION SELECTION EVALUATION STAGES
(regulation 49(3))
STAGE ONE
Expressions of Interest Evaluation
1. The procuring entity shall—
(a) evaluate the expressions of interest together and with any supporting information; and
(b) select a bidder with the most appropriate qualifications and references, to whom the contract is to be awarded.
2. The Evaluation Committee shall—
(a) prepare a technical evaluation report of the expressions of interest received; and
(b) submit the technical evaluation report to the Contracts Committee for its approval.
3. The procuring entity shall not proceed to Stage Two of the evaluation procedure before obtaining the approval of the Contracts Committee.
STAGE TWO
Cost Negotiations
1. The procuring entity shall request the selected bidder to negotiate the terms of the contract for the provision of the services.
2. Negotiations shall be carried out in accordance with the provisions of these Regulations.
FIFTH SCHEDULE
PRICE ADJUSTMENT FORMULA TO BE USED BY PROCURING ENTITIES WHERE NO INDUSTRY STANDARDS ARE AVAILABLE
(regulation 81(6))
Prices payable to the supplier, as stated in the contract, shall be subject to adjustment during performance of the contract to reflect changes in the cost of labour and material components in accordance with the formula:
<OB:FO:”Bitmap 1″,1.98958,0.427083
In which:
P1 = adjustment amount payable to the supplier
Po = contract price (base price)
a = fixed element representing profits and overheads included in the contract price and generally in the range of 5 to 15 per cent.
b = estimated percentage of labour component in the contract price
c = estimated percentage of material component in the contract price
Lo, L1 = labour indices applicable to the contract on the base date and date adjustment.
Mo, M1 = material indices for the major raw material as applicable to the contract on the base for adjustment, respectively.
The coefficients a, b and c shall be specified by the purchaser in the bidding documents unless otherwise determined by the procuring entity. The sum of the three coefficients shall be one in every application of the formula. The bidder shall indicate the source of the indices and the base date indices in its bid. The base date is 30 days prior to the deadline for submission of the bids. The date of adjustment is………………………..weeks prior to the date of shipment (representing the mid-point of the period of manufacture).
Either party may invoke the above price adjustment formula subject to the following further conditions:
Price adjustment will be applied only if the resulting increase or decrease is more than 2 per cent of the contract price.
No price adjustment shall be allowed beyond the original delivery dates unless specifically stated in the extension letter. As a rule, no price adjustment shall be allowed for periods of delay for which the supplier is entirely responsible. The purchaser will, however, be entitled to any decrease in the price of the goods and services subject to adjustment. The total adjustment under this clause shall be subject to a ceiling of plus or minus ten 10 per cent to the contract price.
If the currency in which the contract price Po is expressed is different from the currency of the labour and material indices, a correction factor will be applied to avoid incorrect adjustments to the contract price. The correction factor shall correspond to the ratio of exchange rates between the two currencies on the base date and the date for adjustment as defined above.
No price adjustment shall be payable on the portion of the contract price paid by the supplier as advance payment.
PUBLIC PROCUREMENT AND ASSET DISPOSAL (INDEPENDENT COMPLAINTS REVIEW COMMITTEE) REGULATIONS
(under section 130)
(31st March, 2006)
ARRANGEMENT OF REGULATIONS
REGULATIONS
PART I
Preliminary
1. Citation
2. Interpretation
PART II
Establishment, Membership and Procedure of Independent Complaints Review Committee
3. Establishment of Independent Committee
4. Disqualification from appointment
5. Removal and resignation
6. Disclosure of interest
7. Procedure at meetings
8. Secretary
PART III
Complaints Procedure, orders and decisions of the Independent Committee
9. Lodging of complaints
10. Complaint format
11. Consideration of complaint
12. Interim order of Independent Committee
13. Matters not to be allowed
14. Decisions of Independent Committee
PART IV
Miscellaneous
15. Referring complaints to other bodies
16. Register of persons found with fault
17. Fines
18. Offence
Schedule
S.I. 20, 2006
PART I
Preliminary (regs 1-2)
These Regulations may be cited as the Public Procurement and Asset Disposal (Independent Complaints Review Committee) Regulations.
In these Regulations unless the context otherwise requires—
“Board” means the Public Procurement and Asset Disposal Board established under section 10 of the Act;
“Independent Committee” means the Independent Complaints Review Committee established under regulation 3;
“member” means a member of the Independent Committee appointed under regulation 3;
“Secretary” means Secretary of the Independent Committee appointed under regulation 8;
PART II
Establishment, Membership and Procedure of Independent Complaints Review Committee (regs 3-8)
3. Establishment of Independent Committee
(1) Pursuant to section 95 of the Act, there is hereby established a body to be known as the Independent Complaints Review Committee, which shall consist of five members appointed by the Minister.
(2) The Independent Committee shall consist of—
(a) a Chairperson; and
(b) four other members.
(3) A member of the Independent Committee shall be appointed for a period not exceeding five years.
(4) The Minister shall specify, when appointing members to the Independent Committee, such periods of appointment as ensure that the appointments of not more than one third of the members expire in any one year.
(5) In the absence of the Chairperson at any meeting the members present shall elect a Chairperson for that meeting from among themselves.
4. Disqualification from appointment
(1) No person shall be appointed as a member of the Independent Committee or continue to hold office who has—
(a) in terms of a law in force in any country—
(i) been adjudged or otherwise declared insolvent or bankrupt and has not been rehabilitated or discharged; or
(ii) made an assignment to, or arrangement or composition with, his creditors, which has not been rescinded or set aside; or
(b) within the period of 10 years immediately preceding the date of his appointment or election, been convicted—
(i) of a criminal offence; or
(ii) outside Botswana of an offence which, if committed within Botswana, would have been a criminal offence, and sentenced to imprisonment for six months or more without the option of a fine, whether or not that sentence has been suspended, and for which he has not received a free pardon;
(c) been convicted of an offence or dismissed from employment for an offence involving moral turpitude.
(2) The Minister shall suspend from office a member against whom criminal proceedings are instituted for an offence in respect of which a sentence of imprisonment may be imposed, and whilst that Committee member is so suspended he shall not carry out any duties or be entitled to any remuneration or allowances as a Committee member.
(1) A member may resign from the Independent Committee by giving 30 days notice, in writing, to the Minister.
(2) The Minister may remove a member from office if the Minister is satisfied that the member—
(a) has been adjudged guilty of having acted improperly as a member of the Independent Committee; or
(b) is inefficient;
(c) has been found to be physically or mentally incapable of performing his or her duties efficiently, and the members medical doctor has issued a certificate to that effect; or
(d) has failed to comply with the provisions of regulation 6(1).
(1) Where a member is present at a meeting of the Independent Committee to which any matter is the subject of consideration and in which matter the member is directly or indirectly interested in a private capacity, the member shall forthwith upon the commencement of the meeting
(a) disclose such interest and shall not, unless the Independent Committee otherwise directs, take part in any consideration or discussion of, or vote on, any question concerning that matter; and
(b) recuse himself or herself from the meeting, unless the person is otherwise directed in terms of paragraph (a).
(2) A disclosure of interest made under subsection (1) shall be recorded in the minutes of the meeting at which it is made.
(3) Where a member fails to—
(a) disclose his or her interest in a matter before the Committee for consideration, in accordance with subregulation (1); or
(b) recuse himself or herself from the meeting at which that matter is being considered,
and the Independent Committee makes a decision which benefits the member, the decision shall be void to the extent to which it benefits that member.
(4) A person who contravenes the provisions of subregulation (1) commits an offence and is liable to a fine not exceeding P500 or for a term of imprisonment not exceeding one year or to both.
(1) Meetings of the Independent Committee shall be held at such times and at such places as the Chairperson may determine, and at least four ordinary meetings of the Independent Committee shall be held in each year.
(2) At least seven days notice shall be given of any meeting of the Independent Committee, except in the case of an emergency.
(3) Special meetings of the Independent Committee may be convened by the Chairperson when the Chairperson considers such meetings to be necessary or desirable, and shall be convened by him or her within one month on the request, in writing, of at least three members of the Independent Committee setting out clearly the purpose for which the meeting is to be convened.
(4) At any meeting of the Independent Committee any three members shall constitute a quorum.
(5) Decisions of the Independent Committee at any meeting shall be decided by a majority of the members present at that meeting, and where there is equality of votes the Chairperson, or the person acting as Chairperson at the meeting, shall have a casting vote.
(6) The Independent Committee may co-opt experts holding relevant qualifications and experience to participate in the deliberations of the Independent Committee, but such experts shall not vote on any motion before the Independent Committee.
(7) Except as may be otherwise provided in the Act and these Regulations, the Independent Committee shall regulate its own affairs and proceedings.
(1) The Minister shall appoint a public officer as secretary of the Independent Committee.
(2) The Secretary may require any person involved with public procurement and asset disposal to submit to the Independent Committee such information and data as the Independent Committee may consider necessary for the discharge of its functions.
PART III
Complaints Procedure, orders and decisions of the Independent Committee (regs 9-14)
(1) Subject to subregulation (2) the Independent Committee shall deal with any matter that arises in terms of section 103(1) of the Act, such matter referred to in these Regulations as a complaint.
(2) The Independent Committee shall consider a complaint only where—
(a) the complaint had, before submission to the Independent Committee, been submitted and considered under the review procedures of the Board and a decision of the Board had been made on the complaint; and
(b) the complaint is lodged with the Independent Committee on application for review of the decision of the Board; and
(c) the complaint is lodged in the format set out in regulation 10.
(3) A complaint shall be lodged with the Independent Committee not more than 14 days after the decision of the Board referred to in subregulation (2).
(4) A complaint fee equal to one per cent of the estimated tender value pertaining to the complaint shall be paid at the lodging of each complaint, except that in no case shall the complaint fee payable be less than P1,500 or more than P350,000.
(5) The complaint fee paid shall be refunded where the complaint, after consideration by the Independent Committee, is found to have merit in relation to its substance.
(6) Every complaint lodged shall be accompanied by a lodging fee of P250.
(1) A complaint lodged with the Independent Committee under these Regulations shall be in Form 1, set out in the Schedule.
(2) The complaint shall be lodged together with copies of the following documents
(a) the decision of the Board on the complaint;
(b) the relevant set of bidding documents;
(c) the bidding process set forth in the invitation to tender;
(d) any document supporting the complaint that was submitted during the bidding process by the complainant; and
(e) any other document pertinent to the case.
(3) Each complainant shall, where the complaint concerns the procurement or disposing procedures, adduce sufficient evidence to prove either or both of the following—
(a) that the procurement procedures were contravened, or that the procuring entity acted unlawfully with respect to the procurement procedures;
(b) that the complainant would have been awarded the procurement contract had there been no contravention of the procurement procedures or other unlawful act.
11. Consideration of complaint
(1) The Independent Committee shall consider a complaint lodged in terms of these Regulations by—
(a) making reference to—
(i) the Board and to its records and decision on the matter;
(ii) the procuring or disposing entity concerned and to its records and decision on the matter, if any;
(iii) any procuring or disposing entity and to its records;
(b) seeking the advice of experts co-opted in terms of regulation 7(6);
(c) comparing the process of procurement under inquiry with previous procurement patterns that resulted in fraud or corruption or both; and
(d) conducting such further investigations as may be necessary for the making of an informed judgment on the matter.
(2) The Independent Committee shall make its decision on the complaint, lodged in compliance with the provisions of these Regulations, within a period of not more than 30 days from the receipt of the complaint.
(3) A person appearing before the Independent Committee shall appear in person and not by means of legal representation.
12. Interim order of Independent Committee
(1) Subject to subregulation (2) where the Independent Committee deems it to be in the interest of a particular procurement project being inquired into under these Regulations to suspend the procurement process for the purpose of an inquiry and in relation to such contract
(a) the Board has not made an award of the bid; and
(b) a letter has not been issued to the successful bidder indicating the commencement of the contract,
the Independent Committee may order that the procurement process be suspended for a period not exceeding 21 days to enable the inquiry to be completed.
(2) The Independent Committee may, for purposes of an inquiry, suspend a procurement project based on a contract where the requirements of subregulation (1)(a) and (b) are not fulfilled only where an aggrieved party has adduced sufficient evidence to demonstrate that the execution of such a contract—
(a) may cause substantial loss to the public revenue; or
(b) will prejudicially affect the public interest.
(1) The Independent Committee may not, except after consulting the Board, allow—
(a) a complaint that has been lodged to be withdrawn; or
(b) the complainant to conclude an agreement with the procuring entity in respect of the complaint.
(2) In any case where the Independent Committee allows an application made in terms of subregulation (1), its decision shall be published by notice in the Gazette and the file containing all the documents pertaining to the case shall be made available for public inspection during business hours, on payment of a fee of P50.
14. Decisions of Independent Committee
(1) The Independent Committee shall, after considering the complaint in accordance with regulation 11, make a decision on the matter as follows—
(a) uphold the decision of the Board and dismiss the complaint;
(b) reject the decision of the Board and order the procuring entity to—
(i) do or redo an action or proceeding;
(ii) suspend procurement process in terms of regulation 12;
(iii) cancel the procurement proceedings; or
(c) make a finding in favour of the complainant and award costs to the complainant that shall not exceed the commercial outlay for the preparation of a bidding package when the dispute relates to an award decision and less if the dispute is in respect of other complaints.
(2) If any allegation of fraud or bias is proved by the Independent Committee during the course of its enquiry, the Independent Committee shall order any person found guilty of the fraud or bias to be excluded from the procurement process that shall take place as a consequence of the decision of the Independent Committee under subregulation (1).
(3) The complainant shall be notified of the decision of the Independent Committee no later than three days after the decision is officially made.
(4) The decision of the Independent Committee on any complaint shall be published by notice in the Gazette.
PART IV
Miscellaneous (regs 15-18)
15. Referring complaints to other bodies
The Independent Committee may refer or report any aspect of their decisions on any complaint to the Attorney-General, the Directorate on Corruption and Economic Crime or other authority for further action or inquiry.
16. Register of persons found with fault
(1) The Independent Committee shall establish a register of persons against whom fault was found in any inquiry under these Regulations.
(2) The register shall give a brief statement of the—
(a) procurement project concerned; and
(b) decisions of the Board and the Independent Committee regarding the person concerned.
(3) The register shall be kept by the Secretary of the Independent Committee and shall be open to the public for examination on payment of a fee of P50 during business hours.
The Independent Committee may, after consultation with the Board, order a complainant against whom fault has been established in an inquiry to pay such fine as the Independent Committee may consider appropriate.
Any person who submits or provides to the Independent Committee any information that such person knows to be false or documents that such person knows to have been falsified, commits an offence and is liable to a fine not exceeding P500 or to imprisonment for a term not exceeding six months or to both.
SCHEDULE
FORMS
Form 1
COMPLAINT FORM
(reg. 9)
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1.1 Name of complainant company or firm: ………………………………………. |
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1.2 Address of complainant company or firm: ……………………………………. |
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1.3 Name of complainant company or firm representative:……………………. |
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1.4 Address of complainant company or firm representative:…………………. |
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2. Procuring entity and procurement project |
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2.1 Name and address of procuring entity: ……………………………………….. |
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2.2 Procurement number: ……………………………………………………………. |
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2.3 Description of project or goods being tendered: …………………………….. |
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2.4 Approximate value of the tender: ……………………… ……………………… |
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2.5 Tendering timetable: |
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3. Description of complaint and statement of what complainant thinks would be a reasonable solution to the complaint: |
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4. Documents submitted in support of complaint: |
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Signed by ………………………………………….(Complainant Representative) |
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Company Date Stamp ………………………………………………………………. |
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Received by ……………………………(Secretary of Independent Committee) |
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Independent Committee Date Stamp ……………………………………….. |
PUBLIC PROCUREMENT AND ASSET DISPOSAL (SUSPENSION AND DE-LISTING OF CONTRACTORS) REGULATIONS
(section 50)
(26th June, 2009)
ARRANGEMENT OF REGULATIONS
REGULATIONS
1. Citation
2. Establishment of Suspension and De-listing Disciplinary Committee
3. Procedure at meetings
4. Lodging of complaint
5. Complaint by Board
6. Consideration of complaint
7. Decision of the Board
7A. Endorsement of conviction in register
7B. Termination of contracts
8. Register of suspended or de-listed contractors
SCHEDULE
S.I. 52, 2009,
S.I. 27, 2013.
These Regulations may be cited as the Public Procurement and Asset Disposal (Suspension and De-listing of Contractors) Regulations.
2. Establishment of Suspension and De-listing Disciplinary Committee
(1) There is hereby established a body to be known as the Suspension and De-listing Disciplinary Committee (hereinafter referred to as “the Disciplinary Committee”’).
(2) The composition of the Disciplinary Committee shall be as provided in a notice published in the Gazette.
(1) The Disciplinary Committee shall meet at such times and at such places as the Chairperson may determine after consultation with the Board.
(2) The Chairperson shall give members at least seven days’ notice of any meeting of the Disciplinary Committee, except in an emergency or as directed by the Board.
(3) The quorum for a meeting of the Disciplinary Committee is half the number of its members.
(4) The Board may direct the Disciplinary Committee with respect to any aspect of its procedure.
(1) Any person with a financial or contractual interest in a contract under the Act may lodge a complaint of any incidence of non-compliance with the code of conduct or terms of the contract by a contractor who is party to such contract with the Board.
(2) The non-compliance with the code of conduct or terms of the contract complained of under subregulation (1) shall arise from circumstances relating to the implementation by the contractor of the terms of the contract in which the complainant has a financial or contractual interest.
(3) The complainant shall substantiate the complaint of non-compliance to the satisfaction of the Board.
(4) The Board shall, upon receipt of a complaint under subregulation (1), submit the complaint to the Disciplinary Committee to be investigated.
(5) The code of conduct referred to in subregulation (1) shall be as set out in the Schedule to these Regulations.
Where the Board, in the execution of its functions under the Act, finds an instance of questionable conduct implying non-compliance with the code of conduct or terms of contract by a contractor, the Board shall forward a complaint to the Disciplinary Committee to be investigated.
(1) The Disciplinary Committee shall, upon receipt of a complaint submitted to it by the Board under regulation 4(4) or 5—
(a) investigate the complaint received by making reference to—
(i) the requirements of the code of conduct or terms of the contract, and
(ii) the procuring or disposing entity concerned and its records and decisions on the matter, if any;
(b) seek the advice of experts where necessary;
(c) compare the acts of the contractor under enquiry with established practices of contractors in a similar field; and
(d) conduct such further investigation as may be necessary for the making of an informed determination by the Disciplinary Committee on the matter.
(2) The Disciplinary Committee may, at any stage of the investigations, hold a hearing with the contractor under enquiry.
(3) The Disciplinary Committee shall, before the hearing under subregulation (2), furnish the contractor under enquiry, in writing, with the particulars of the complaint or allegations made against such contractor.
(4) The Disciplinary Committee shall give the contractor an opportunity to reply to the complaints or allegations made under subregulation (2).
(5) The Disciplinary Committee shall, after it has concluded its investigations and hearings and made its determination, forward its recommendations on the matter to the Board not later than 30 days after receipt of the complaint.
(6) A contractor required to appear before the Disciplinary Committee shall appear in person and not by means of legal representation.
(1) The Board shall, on receipt of the recommendations of the Disciplinary Committee under regulation 6(5), make a decision on the matter as follows—
(a) find in favour of the complainant and impose any of the following orders, or combination thereof, against the contractor—
(i) reprimand the contractor formally in writing;
(ii) suspend the contractor for a specified period of time from participating in Government procurement and asset disposal;
(iii) suspend the contractor conditionally on terms, pending fulfilment by the contractor of the conditions of suspension imposed;
(iv) issue a remedial order, where the contractor shall be ordered to comply with remedial measures within a specified time, failing which the contractor shall be suspended for a specified period of time from participating in Government procurement and asset disposal; or
(v) de-list and remove the contractor from the register of contractors; or
(b) find in favour of the contractor and dismiss the complaint.
(2) Where the Board orders that a contractor be de-listed under subsection (1)(a)(v)—
(a) the contractor shall submit to the Board, within seven days of receipt of the Board’s decision, all Board certificates in the contractor’s possession; and
(b) the Board shall notify, in writing, the procuring or disposing entity that the contractor has been de-listed.
(3) The Board may require a contractor to make restitution of any proceeds or other benefits received by the contractor relating to a contract under enquiry, which proceeds or benefit the Board has proven that the contractor was not entitled to.
(4) The decision of the Board under this regulation shall be made within 30 days of receipt of the recommendations of the Disciplinary Committee under regulation 6(5).
7A. Endorsement of conviction in register
The Board, on the recommendation of the Disciplinary Committee, shall determine the period within which the particulars of a contractor shall remain endorsed in the register of contractors in accordance with the provisions of the Corruption and Economic Crime Act (Cap. 08:05), and during such period no offer in respect of any contract from the contractor may be considered by a procuring or disposing entity:
Provided that, the period within which the particulars of a contractor shall remain in the register shall not be more than five years.
(1) Where a contractor has been de-listed and removed from the register of contractors under regulation 7(1)(a)(v) or the register has been endorsed in accordance with the Corruption and Economic Crime Act, a procuring or disposing entity may, in consultation with the Board, terminate any contract entered into with the contractor whose name has been endorsed in the register:
Provided that, in considering the termination of the contract, the procuring or disposing entity shall take into account the following circumstances—
(a) the extent and duration of the contract concerned;
(b) whether it is likely to conclude a similar contract with another contractor or within a specified time frame;
(c) the extent to which the contract has been executed;
(d) the urgency of the services to be delivered or supplied in terms of the contract;
(e) whether any costs will follow such termination; and
(f) any other factor which in the opinion of the procuring or disposing entity, may impact on the termination of the contract.
(2) The Board shall, during the period referred to in subregulation (1), disqualify a contractor whose contract has been terminated from making any offer or obtaining any contract relating to the procurement of specific works, services or supplies.
(3) The procuring or disposing entity shall take the decision to terminate a contractor’s contract—
(a) where the contractor has been convicted of an offence under section 28 or 29 of the Corruption and Economic Crime Act, after any appeal against the conviction or sentence, or both, has been finalised by a court; or
(b) where there has been a breach of contract or the provisions of the code of conduct by the contractor.
(4) Where a procuring or disposing entity has decided to terminate the contract of a contractor, the procuring or disposing entity shall, within 14 days of the decision, notify, in writing—
(a) the contractor whose contract has been terminated; and
(b) all other procuring or disposing entities,
of the decision and request such bodies not to enter into contracts with the contractor for such period within which such contractor has been de-listed.
8. Register of suspended or de-listed contractors
(1) The Board shall maintain an up-to-date register of suspended or de-listed contractors.
(2) The register shall be open to the public for examination.
SCHEDULE
CODE OF CONDUCT FOR CONTRACTORS
(reg. 4(5))
1. GENERAL
1.1 A contractor shall ensure that competent persons carry out the contractual obligations of the contractor.
1.2 A contractor shall ensure that certified copies of all mandatory certificates, professional qualifications, accreditation and affiliation of employees are kept in the office and shall be made available to the Board promptly on request.
1.3 A contractor shall ensure that all relevant requirements are provided for in procurement documents that services and products are delivered on time in line with the procurement documents’ service requirements.
2. DISCLOSURE OF INFORMATION
2.1 A contractor shall not disclose information acquired from or through its association or relationship with the Board or its Committees, or a Government department or agency which has not been made public on a potential or current service provider for the contractor’s advantage, material gain and advancement.
2.2 A contractor shall not use its, or his or her association or relationship (other than as allowed in the association agreement) with the Board or its Committees, or Government departments or agencies for the contractor’s advantage, material gain or advancement.
3. COLLUSION AND FRONTING
3.1 A contractor shall not manipulate his or her true shareholding, directorship, management, employees or financial resources in order to be compliant with the requirements of section 121 of the Act regarding categorisation of contractors in terms of ownership, etc.
3.2 A contractor shall not be involved in fronting, tokenism, window dressing and “rent a Motswana” practices during the tendering stage or when seeking registration in the register of contractors under section 116 of the Act. For the purposes of this code, the terms “fronting”, “tokenism”, “window dressing” and “rent a Motswana” mean the misrepresentation of a material fact of the ownership, management and control, as well as in the skilled and specialist positions (core to the purpose of existence) of a contractor in order to appear compliant with citizen reservation and citizen preferential treatment and for material gain, advancement or advantage in the procurement process.
3.3 A contractor shall not sublet or sub-contract without declaration at tender stage a disproportionate amount of work, or the core aspect of the assignment to a contractor who does not qualify for reservation or preferential treatment. This may also take the form of utilising the resources (human, equipment, facilities, material, financial, etc.) of a contractor who does not qualify for reservation or preferential treatment. In this regard the true material benefit and advancement does not meaningfully and tangibly accrue to the contractor the due reservation or preferential treatment.
3.4 A contractor shall not have a predominance of non-executive directors or tokenism whose qualification and experience does not correlate to the core business of the contractor. Passive ownership of an entity can also lead to some form of fronting.
3.5 A contractor shall not engage in any collusive practices that have a direct or indirect adverse impact on the cost of engagement to the procuring or disposing entities.
3.6 A contractor shall not engage in any activity that gives one bidder an improper and unethical advantage over other bidders.
4. PROFESSIONAL CONDUCT AND INTEGRITY
4.1 A contractor shall not submit false information to the Board in order to influence the decision of the Board to register such contractor in the register of contractors under section 116 of the Act.
4.2 A contractor shall not submit false information during the tendering process in order to deceive the Board, a procuring or disposing entity or clients into believing that the contractor has capabilities and capacities to perform contracts which the contractor is not capable of doing by:
4.2.1 Submitting the educational qualification documents and references of persons whom the contractor purports to be in his or her employees when they are not, or without such persons’consent to the Board or its committees; or
4.2.2 Overvaluing of the contractor’s assets as well as overcharging of professional fees by the contractor.
4.3 A contractor shall meet his or her contractual obligations in the delivery of products and services.
4.4 A contractor shall ensure that he or she conducts himself or herself professionally during the procurement process and honours contractual commitments timeously and in a professional manner.
4.5 A contractor shall ensure that the contractor’s obligations in terms of contracts with sub-contractors and agents are scrupulously and timeously met, particularly in regard to making payments.
4.7 A contractor shall not make spurious claims for additional payment and extension of time.
4.8 A contractor shall not use an advance mobilisation loan for any purpose than the intended purpose of that loan.
4.9 A contractor shall perform the contractor’s contractual duties in an unbiased and conscientious manner, bearing in mind the legitimate interests of all parties to the procurement process and the public.
4.10 A contractor shall not abandon the work that such contractor is contracted to do.
4.11 A contractor shall not fail to deliver work to the expectations and obligations as provided by the contract under which the registered contractor is contracted without any valid reason.
4.12 A contractor shall ensure that he or she delivers or performs his or her obligations under the contract according to the specifications of his or her contract with a procuring or disposing entity.
PUBLIC PROCUREMENT AND ASSET DISPOSAL (RETROACTIVE APPROVALS) ORDER
(section 44(3))
(23rd November, 2012)
ARRANGEMENT OF REGULATIONS
PARAGRAPH
1. Citation
2. Interpretation
3. Special circumstances for retroactive approvals
S.I. 90, 2012.
This Order may be cited as the Public Procurement and Asset Disposal (Retroactive Approvals) Order.
In this Order “environment” means the physical environment which includes fauna and flora located within the Republic of Botswana.
3. Special circumstances for retroactive approvals
The Board may by resolution approve, retroactively, a bid or invitation to tender issued by a procuring or a disposing entity where the job to be performed by a selected contractor or the service to be provided by a selected service provider is urgent and necessary—
(a) to protect life; or
(b) to protect the environment.
PUBLIC PROCUREMENT AND ASSET DISPOSAL (RESERVATION OF GOVERNMENT TENDERS FOR CITIZEN-OWNED ENTERPRISES) ORDER
(under section 72(1))
(28th February, 2020)
ARRANGEMENT OF REGULATIONS
PARAGRAPH
1. Citation
2. Reservation of Government tenders
3. Exemptions
S.I. 23, 2020.
This Order may be cited as the Public Procurement and Asset Disposal (Reservation of Government Tenders for Citizen-Owned Enterprises) Order.
2. Reservation of Government tenders
All works, supplies and services tenders up to the sum of P10 000 000 issued by the central Government, State-owned entities or other entities falling within the scope of section 3, as read with section 8 of the Act, shall be reserved for 100% citizen-owned small, medium and micro enterprises with a maximum annual turnover not exceeding P10 000 000.
An exemption from the provisions of paragraph 2 may apply with the prior approval of the Board or the Committee, where the central Government, State-owned entities or other entities falling within the scope of section 3, as read with section 8 of the Act, is satisfied that no 100% citizen-owned enterprise that is suitable and qualifies for the tender is available.
PUBLIC PROCUREMENT REGULATIONS
(section 150)
(28th March, 2023)
ARRANGEMENT OF REGULATIONS
REGULATION
PART I
Preliminary
1. Citation
2. Interpretation
3. Application of Regulations
PART II
Accounting Officers and Procuring Entities
4. Terms and conditions of delegation of functions of Accounting Officers
5. Delegation to another procuring entity
6. Outsourcing to procurement agent or procurement service provider
PART III
Evaluation Committees, User Departments, Central Agencies, etc.
7. Composition of Evaluation Committee
8. Functions of Evaluation Committee
9. Co-option of advisory panel of Evaluation Committee
10. Functions of user Department
11. Central agencies for common use items
PART IV
Selection and Methods of Procurement, etc.
12. Selection of procurement method
13. Bidding periods
14. Open domestic bidding method
15. Open international bidding method
16. Restricted domestic bidding method
17. Restricted international bidding method
18. Request for quotation proposals method
19. Micro procurement method
20. Direct procurement method
21. Request for proposals with competitive negotiations method
22. Competitive dialogue method
23. Reverse auction method
24. Unsolicited bid method
25. Best and final offer method
26. Negotiated procedure method
27. Expression of interest method
28. Hackathon method
29. Community participation method
30. Emergency procurement method
31. Procurement of highly sensitive works, services or supplies
32. Procurement of medicines and related medical supplies
PART V
Procedure and Processes of Procurement by Procuring Entities
33. Procurement planning
34. Contents of annual procurement plan
35. Aggregation of procurement requirements
36. Division of procurement requirement into lots
37. Initiation of procurement process
38. Approval of requisition to procure
39. Availability of funds
40. Standardisation of procurement
41. Categorisation of works, services or supplies
42. Potential sources
43. Pre-qualification of bidders
PART VI
Standardised Bidding Packages and Bidding Processes
44. Bidding documents
45. Selection of standardised bidding package
46. Validity of bids
47. Statement of procurement requirement
48. Pre-bid meetings and site visits
PART VII
Procedure for Tender Submission, Tender Opening and Evaluation, De-briefing of Bidder and Cancellation of Procurement Process
49. Methods of submission of bids
50. Receipt of bid and bid opening
51. Withdrawal of bids
52. Evaluation process
53. Clarification of bids during evaluation process
54. Evaluation of single envelope or package bid
55. Evaluation of dual envelope or package bid
56. Change of details of bids
57. Ad hoc de-briefing committee
58. Functions of ad hoc de-briefing committee
59. Choice of method of evaluation
60. Evaluation by quality and cost based selection
61. Evaluation by quality based selection
62. Evaluation by fixed budget selection
63. Evaluation by least cost selection works and supplies
64. Evaluation by least cost selection services
65. Evaluation by qualification selection method
66. Cancellation of tender
PART VIII
Procedure for Negotiation of Contracts and Award of Tenders
67. Negotiation of contracts
68. Award of tender
69. Types of contracts and pricing approaches
70. Lump sum contracts
71. Time-based or measured works contracts
72. Rate contracts
73. Framework contracts
74. Percentage based contracts
75. Cost reimbursable and target price contracts
76. Retainer and success fee contracts
77. Indefinite delivery contract or price agreement
78. Contents of contract
79. Change in circumstances of contractors
PART IX
Conditions for Deviation from Applicable Procurement Method, Procurement Process, etc.
80. Deviations
81. Monitoring and profile analysis of deviations
82. Alternative procurement process relating to external obligations
83. Retroactive procurement activities
PART X
Reservation and Preferential Treatment
84. Requirements for reservation and preference schemes
85. Skills transfer
86. Subcontracting
87. Timely payment for performed contracts
88. Reservation schemes
89. Preference schemes
90. Promotion and support of innovative products
91. Single preference for bidders
92. Unbundling of tenders
93. Security for tender and performance bond
94. Award of tenders based on rota system
95. Monitoring and evaluation
96. Beneficial owners
97. Primary contractors and subcontracting
PART XI
Procedure, Rules and Thresholds for Management, Amendment or Variation of Contracts
98. Contract management and responsibilities
99. Contract manager
100. Inspection of works, services and supplies
101. Inspection and acceptance of supplies
102. Termination of contracts
103. Termination of convenience
104. Contract amendments
105. Variation of contracts
106. Contract pricing
107. Price adjustment
108. Payment terms
109. Payment structure
110. Advance payments
111. Interim or phased payments
112. Retained payments
113. Payment of security
114. Payment documents
115. Payment period
116. Payment and payment delays
117. Currency of money used for payment and related limitations
118. Export and import licence responsibility
119. Insurance or indemnity
120. Currency fluctuations
121. Performance security
PART XII
Ethics and Transparency in Public Procurement
122. Declaration of interest
123. Confidentiality relating to procurement process
124. Declassification of information
125. Publication of decisions
PART XIII
Maintenance of Records by Procuring Entities
126. Maintenance of records
127. Contract records
128. Requirement for reporting
129. Safe keeping of documents
130. Access to documents relating to procurement
PART XIV
Procedure for Monitoring and Compliance by Authority
131. Procurement, contract and performance audits
132. Compliance enforcement
133. Reporting to Authority by procuring entities
PART XV
Procedure for investigations by Authority
134. Investigations
135. Co-operation with Public Oversight Agencies
136. Delegation of functions and powers of Authority
PART XVI
Registration of Contractors
137. Contractor’s Register
138. Registration requirements
139. Application for registration
140. Inspection of contractor’s business
141. Inspection report
142. Consideration of application for registration
143. Certificate of registration
144. Refusal to register contractors
145. Application for upgrading or downgrading
146. Upgrading or downgrading of contractors
147. Non-registration of citizen contractors in micro procurement
148. Grading of contractors
149. Removal from Contractors’ Register
150. Restoration to Contractors’ Register
151. Updating and correction of registration system
152. Registration fees
153. Subscription fees
154. Renewal of registration
155. Appeal of decision of Authority to not register contractors
PART XVII
Suspension and De-listing of Contractors
156. Suspension and de-listing committee
157. Operations of suspension and de-listing committee
158. Tenure of office of members of suspension and de-listing committee
159. Meetings of suspension and de-listing committee
160. Grounds and sanctions for suspension, de-listing or debarring of contractors
161. Investigations into conduct of contractors
162. Submission of allegations to Authority
163. Investigations by Authority
164. Investigation officers of Authority
165. Decisions of Authority
166. Suspended or de-listed contractors
167. Termination of contracts with de-listed contractors
168. Register of suspended or de-listed contractors
169. Reinstatement of contractors
170. Appeal against decision to suspend or de-list
PART XVIII
Procedure for Lodging of Complaints and Appeals
171. Procedure for lodging of complaints
172. Suspension of procurement process
173. Consideration of complaints
174. Right to fair hearing
175. Decisions of Accounting Officer
176. Remedies by Accounting Officer
177. Appointment of independent review panel
178. Disclosure of interest and confidentiality by members of independent review panel
179. Withdrawal of complaints
PART XIX
Fees
180. Fees
SCHEDULE 1
SCHEDULE 2
SCHEDULE 3
S.I. 23, 2023,
S.I. 68, 2023.
PART I
Preliminary (regs 1-3)
These Regulations may be cited as the Public Procurement Regulations.
In these Regulations, unless the context otherwise requires—
“acquisition” means the acquisition of category 1 material to meet the requirements of equipment for future capability establishment using sound system engineering, project management and contracting methodologies;
“authorised person” means a person who has been given authority by an Accounting Officer to access information;
“award” means a decision by the Accounting Officer, or any other person of a procuring entity to which the Accounting Officer may delegate powers of adjudication and award a tender within specified financial ceilings, to determine the successful bidder;
“best and final offer” means a revision of an offer submitted after a negotiation of a tender is completed that contain the bidder’s most favourable terms for price, service and goods to be delivered;
“best practice” means in accordance with industry standards;
“call off order” means an order placed by a procuring entity under general terms and pricing on a range of goods under a framework contract, without having to negotiate the terms every time;
“contract amendment” means a change to the terms and conditions of an awarded contract;
“contract variation” or “change order” means a change to the price, completion date or statement of the requirements of a contract to facilitate adaptation to any event or change in such requirements;
“deviation” means to depart from a procurement process, procurement method or document provided in the Act;
“direct procurement method” means a sole source procurement method for a procurement requirement where there are exceptional circumstances that prevent the use of competition;
“dual envelope or package method” means a one stage-two envelopes method in which a bid is submitted in an outer sealed envelope or package containing two separately sealed and labelled envelopes or packages, marked and containing separate technical and financial proposals which are opened on different dates, in separate bid openings;
“electronic” means in relation to technology, having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities;
“emergency procurement” means a procurement process carried out under circumstances which are urgent, unforeseeable and not caused by any dilatory conduct of a procuring entity;
“expression of interest” means a qualification process wherein a bidder is invited to express an interest in providing works, services or supplies;
“guidelines” means any advice given by the Authority through any circular that may be issued to the procuring entities in accordance with section 8(1)(j) of the Act;
“international contractor” means a bidder who is not registered as a contractor in accordance with the laws of Botswana and whose operations are not based in Botswana;
“least cost selection” means a method of evaluation that recommends the lowest price of a bid which meets a technical requirement and a commercial requirement;
“micro procurement” means the acquisition of a standard and low value works, services or supplies;
“open domestic bidding” means a procurement method open to participation on equal terms by all service providers domiciled in Botswana;
“open international bidding” means a procurement method open to competition and participation by all service providers through advertisement of a procurement opportunity which seeks to include an international contractor;
“procurement method” means the procurement method provided for under section 52 of the Act;
“procurement process” means the successive stages in the procurement cycle including any stage of the procurement process from planning to contract management;
“quality and cost based selection evaluation” means an evaluation method that takes into account the quality and cost of a bid in a process under which a technical bid is evaluated without access to a financial bid;
“records” means any documents or information relating to any stage of a procurement process and includes—
(a) an electronic and manual archive containing the document or information relating to a procurement process; or
(b) a record received or kept by a public body, in the exercise of its functions;
“request for quotations” means a simplified procurement method which compares price quotations or proposals obtained from a number of providers;
“responsive bid” means a bid which conforms to all the terms, conditions and requirements of a solicitation document without any material deviation, reservation or omission from the terms, conditions and requirements of the solicitation document;
“restricted domestic bidding” means the direct solicitation from a limited number of service providers domiciled in Botswana for the procurement of works, services or supplies;
“restricted international bidding” means the direct solicitation from a limited number of service providers domiciled in Botswana or outside Botswana for the procurement of works, services or supplies;
“single envelope or package submission method” means a one stage single envelope or package method in which a bid is submitted in a one sealed envelope or package which is opened on the specified date and time in a single bid opening;
“standardisation” means standardisation of procurement of works, services or supplies;
“statement of requirement” means a document prepared by a procuring entity providing a correct and competitive description of the subject of the procurement for the purposes of creating a fair and open competition;
“unsolicited bid” means a proposal that demonstrates substantial, technical or financial innovation, or meets an unidentified need submitted to a procuring entity for consideration in the absence of an invitation by the procuring entity;
“user” means a procuring entity, system administrator, auditor, civil society organisation and any other user as may be approved by the Authority; and
“user Department” means any department, division, branch or unit of a procuring entity, which initiates a procurement requirement and is the user of the procurement requirement.
(1) These Regulations shall apply to all public procurement, except procurement of works, services or supplies determined by the Minister to require a different procurement procedure or method, for purposes of national security or any other reason the Minister may deem reasonable.
(2) A dispute relating to the applicability of the Act shall, in writing and with any supporting document, be submitted to the Minister.
(3) The Minister shall make a decision on a dispute referred to the Minister in terms of this regulation within 21 days.
(4) Where the Minister fails to resolve a dispute referred to in terms of this regulation, the complainant may refer the dispute to the Tribunal.
PART II
Accounting Officers and Procuring Entities (regs 4-6)
4. Terms and conditions of delegation of functions of Accounting Officers
(1) An Accounting Officer may delegate procurement functions of a—
(a) procurement oversight unit and procurement unit to a user Department within a procuring entity; and
(b) procurement unit and user department to another procuring entity, or to a procurement agent or a procurement service provider.
(2) An Accounting Officer may delegate a procurement function of a procurement oversight unit or procurement unit to a department within a procuring entity, in terms subregulation (1), subject to any value limitations or any other exceptions where—
(a) the procuring entity has substantial procurement workload which would be effectively managed by the department;
(b) the procuring entity has a specialised procurement which would be effectively managed by the department;
(c) the department is not within the geographical location of a procurement oversight unit or procurement unit and a delegation would reduce costs, and reduce practical and logistical challenges;
(d) the department operates as an independent department and would effectively manage the delegated procurement function;
(e) it is cost effective to delegate;
(f) the structure of a procuring entity does not allow for the establishment of a procurement unit; or
(g) there are other reasonable circumstances that may arise.
(3) Where an Accounting Officer delegates a procurement function to a department within a procuring entity in terms of this regulation, he or she shall establish a—
(a) procurement oversight unit for the department; and
(b) procurement unit for the department.
(4) A procurement oversight unit referred to under subregulation (3)(a) and a procurement unit referred to under subregulation (3)(b) shall—
(a) carry out the delegated procurement functions in accordance with the provisions of the Act;
(b) be responsible for the delegated procurement functions and any decisions made in the performance of such delegated procurement functions;
(c) submit consolidated reports on all procurement activities of a procuring entity to the procuring entity;
(d) liaise with the Authority on behalf of a procuring entity;
(e) advise a procuring entity on any matter relating to procurement;
(f) submit such reports as may be required to a procurement oversight unit of a procuring entity;
(g) give a copy of the minutes of all of its meetings to a procurement oversight unit of a procuring entity;
(h) seek advice and guidance on any matter relating to public procurement from a procurement oversight unit or procurement unit of a procuring entity; and
(i) request a procurement oversight unit or procurement unit to act on its behalf on matters requiring liaison with the Authority.
(5) An Accounting Officer shall, where the Accounting Officer delegates his or her procurement functions under this regulation, ensure the independence and segregation of duties in accordance with the Act.
(6) An Accounting Officer may, in writing, revoke any delegation of a procurement function to a procurement oversight unit or a procurement unit where—
(a) the procurement oversight unit or a procurement unit fails to comply with the terms and conditions of the delegation, or the provisions of the Act;
(b) the circumstances of the delegation have changed;
(c) a malpractice is suspected, alleged or proved; or
(d) there are other reasonable circumstances.
(7) An Accounting Officer shall not delegate any of the following functions of a procurement unit to a department within a procuring entity—
(a) the preparation of any report required for submission to a procurement oversight unit or Accounting Officer;
(b) the provision of overall guidance on the development of procurement within the procuring entity;
(c) any recommendation to an Accounting Officer in respect of a delegation of a procurement function;
(d) the coordination of any procurement process of all departments of the procuring entity;
(e) the maintenance of a list or register of all awarded contracts; and
(f) the planning and management of all procurement activities or processes of the procuring entity.
(8) An Accounting Officer may not delegate, in accordance with section 43 of the Act, the establishment of a—
(a) procurement oversight unit; or
(b) procurement unit.
(9) Where an Accounting Officer delegates his or her procurement functions under this regulation to an employee under a procurement oversight unit, or an employee under a procurement unit, such employee shall not, while exercising the delegated functions, be involved in any activity of the procurement oversight unit or procurement unit.
(10) An Accounting Officer shall not assign an employee to a procurement oversight unit if the Accounting Officer delegates his or her functions to the employee.
5. Delegation to another procuring entity
(1) Subject to the provisions of the Act, an Accounting Officer may delegate an entire procurement process to another procuring entity where—
(a) the delegating procuring entity does not have the capacity to enable it to comply with the provisions of the Act;
(b) the Accounting Officer considers that it is economical or efficient to delegate the entire procurement process; or
(c) there is any other circumstance that justifies the delegation.
(2) Notwithstanding subregulation (1), an Accounting Officer may delegate a limited procurement process to another procuring entity where—
(a) the other procuring entity has employees that possess a specialised skill, expertise or experience in the subject matter of such procurement process;
(b) a requirement relating to such procurement process is subject to common procurement;
(c) a project is jointly implemented by both procuring entities;
(d) it would be economical or efficient to delegate a procurement requirement; or
(e) there is any other circumstance that justifies the delegation.
(3) For purposes of this regulation, “common procurement” means a procurement requirement that is in common use by more than one procuring entity.
(4) Where a procurement process has been delegated in terms of subregulation (2), the Accounting Officers shall agree on—
(a) any process that may be excluded from a contract entered between the two procuring entities, in the case of a delegation of the entire procurement process;
(b) the type of a requirement or project to be the subject of the contract referred to under paragraph (a), in the case of a limited delegation of a procurement process;
(c) the mechanism for implementation of a procurement requirement;
(d) the reporting, monitoring, procedures and responsibilities relating to the procurement process;
(e) any limitations or exceptions to the contract referred to under paragraph (a); and
(f) any cost to be paid.
(5) An agreement referred to under subregulation (3) shall be confirmed in writing, and signed, by the Accounting Officers.
(6) Where a limited procurement requirement is delegated to another procuring entity, the institutional arrangement for the approval of the limited procurement requirement shall be agreed upon by the Accounting Officers and may include—
(a) the approval of a procurement oversight unit of a procuring entity that initiates such limited procurement requirement;
(b) the approval of a procurement oversight unit of a procuring entity to which a limited procurement requirement is being delegated;
(c) a limited procurement requirement that may be observed by a representative of a procurement oversight unit of a procuring entity that initiates the limited procurement requirement;
(d) a limited procurement requirement that a representative of a procurement oversight unit of a procuring entity that initiates the limited procurement requirement may participate in the meetings of a procurement oversight unit to which such limited procurement requirement is being delegated; or
(e) a limited procurement requirement for approval by the procurement oversight units of the procuring entities.
(7) An Accounting Officer shall submit a copy of the agreement referred to under subregulation (6) to the Authority.
6. Outsourcing to procurement agent or procurement service provider
(1) A procurement agent or a procurement service provider appointed as such under section 44 of the Act shall not carry out the procurement functions of a procurement oversight unit and an Accounting Officer.
(2) The procurement functions of a procuring entity that may be exercised by a procurement agent or a procurement service provider shall be to—
(a) advise a user department on an individual procurement method or practice;
(b) recommend an appropriate procurement method; and
(c) prepare—
(i) a statement of any requirement or of terms of reference,
(ii) a solicitation document and clarification or amendment,
(iii) a contract document, and
(iv) any amendment to a contract.
(3) The functions of a procuring entity relating to contract management that may be exercised by a procurement agent or a procurement service provider shall be to—
(a) administer and manage a contract;
(b) report any departure from the terms of a contract to a procurement unit;
(c) prepare any change order in accordance with the terms of a contract; or
(d) certify an invoice for any payment to a contractor.
(4) A procurement agent or a procurement service provider shall comply with a procurement process relating to the use of a standard tender document and with the guidelines issued by the Authority.
(5) An Accounting Officer shall, where he or she appoints a procurement agent or a procurement service provider in terms of section 44 of the Act, to perform the functions under this regulation, the Accounting Officer and the procurement agent or the procurement service provider shall enter into an agreement specifying—
(a) the type of a requirement or project that is subject to a contract;
(b) the mechanism for the implementation of the functions related to contract management;
(c) the mechanism for reporting, monitoring a procedure and responsibilities;
(d) any limitation or exception to a contract; and
(e) the conditions of payment of costs involved in contract management.
(6) An agreement referred to in subregulation (5) shall be confirmed in writing and signed by—
(a) an Accounting Officer and a procurement agent or a procurement service provider; or
(b) a representative of an Accounting Officer and a representative of a procurement agent or procurement service provider, duly authorised by the Accounting Officer or the procurement agent or the procurement service provider.
(7) An Accounting Officer shall not appoint the same procurement agent or procurement service provider to exercise procurement functions and functions relating to contract management where there is conflict of interest, or where conflict of interest is likely to arise.
(8) An Accounting Officer shall submit a copy of the agreement referred to under subregulation (6) to the Authority within 30 days.
(9) A procurement agent or procurement service provider shall perform the functions delegated to him or her without the involvement of an employee of a procuring entity.
(10) A procuring entity shall review and may approve the work done by a procurement agent or procurement service provider.
PART III
Evaluation Committees, User Departments, Central Agencies, etc. (regs 7-11)
7. Composition of Evaluation Committee
(1) The members of an Evaluation Committee shall be appointed by an Accounting Officer and shall consist of not less than three members, which may include a member who is not an employee of a procuring entity, where the expertise of such employee is required.
(2) Notwithstanding subregulation (1), the membership of an Evaluation Committee may include one or more members of a user Department, as may be appropriate, and any person involved in the preparation of a bidding document if the Accounting Officer considers it advantageous to the type and complexity of the procurement.
(3) In appointing the members of an Evaluation Committee, an Accounting Officer shall select persons who have skills, knowledge and experience relevant to procurement, which may include—
(a) technical skills;
(b) procurement or contracting skills;
(c) accounting, financial management and analytical skills; and
(d) law.
(4) The maximum number, and level of expertise, of members of an Evaluation Committee, shall depend on the value and complexity of a subject matter of procurement.
(5) An Accounting Officer shall appoint the Chairperson of an Evaluation Committee from amongst the members.
(6) The Vice Chairperson of an Evaluation Committee shall be elected by the members amongst their number.
(7) The Accounting officer shall appoint any person from the relevant procurement unit as the secretary of the Evaluation Committee but who shall not be a member of such Evaluation Committee.
(8) The secretary of the Evaluation Committee shall—
(a) provide technical input in terms of compliance with the Act;
(b) liaise with the Chairperson of the Evaluation Committee as may be directed by such members;
(c) keep and maintain records of the attendance of the meetings of the Evaluation Committee, and take minutes of all deliberations of such Evaluation Committee;
(d) ensure that all records, including any bid, are kept and maintained in a secured place, and shall provide any relevant information or document to the Evaluation Committee;
(e) facilitate the official communication with a bidder, where clarification is required; and
(f) provide logistical support to the Evaluation Committee.
8. Functions of Evaluation Committee
(1) The functions of an Evaluation Committee shall be to—
(a) conduct the compliance, technical and financial evaluation of a tender or a proposal to tender in line with the terms and conditions, and using the criteria, set out in the tender document within a period that may be specified by the Authority;
(b) exercise due diligence when evaluating a tender or a proposal to tender;
(c) seek clarification from a contractor on a tender or a proposal to tender being evaluated, through the secretary of the Evaluation Committee;
(d) prepare a consolidated report on any analysis of a tender, the final ratings assigned to each bid and make recommendations; and
(e) submit the consolidated report referred to in paragraph (d) to a procurement unit.
(2) The functions of an Evaluation Committee to assess a bid and make recommendation shall not be delegated.
(3) An Evaluation Committee shall, after completing an evaluation, prepare an evaluation report in Form A set out in Schedule 1.
(4) An evaluation report referred to under subregulation (3) shall—
(a) provide for the minutes of any meeting held to evaluate a tender or a proposal to tender, where applicable;
(b) describe the steps of an evaluation process highlighting the significant issues and the manner in which an Evaluation Committee reached its conclusions;
(c) provide for any decision made by an Evaluation Committee in the ranking of the substantially responsive bids and the rejection of non-responsive bids;
(d) provide for a comment on the effectiveness and the ineffectiveness, if any, of a bidding process;
(e) make a recommendation on the outcome of an evaluation;
(f) be signed by every member of an Evaluation Committee; and
(g) submitted to a relevant procurement unit for quality.
(5) A member of an Evaluation Committee shall exercise the functions of the Evaluation Committee independently from other members.
9. Co-option of advisory panel of Evaluation Committee
An Evaluation Committee may, where it considers it necessary, through a procurement unit, co-opt any person whose presence at a meeting of the Evaluation Committee is deemed necessary to—
(a) attend and participate in the deliberations at the meeting of the Evaluation Committee; or
(b) provide expertise or technical assistance in the evaluation process.
10. Functions of user Departments
(1) A user Department shall be responsible for the following within the Department—
(a) for the formulation of a procurement requirement for works, services or supplies;
(b) for the preparation of a procurement plan provided under section 71 of the Act in the manner as may be determined by the Authority, for any requirement for which funds have been included in the approved budget of a procuring entity, and submit the procurement plan to a procurement unit for consolidation;
(c) for the implementation of a procurement plan;
(d) for the strategic decision on whether or not the most economic and efficient procurement can be best achieved by separating contracts for each procurement;
(e) for the preparation of a budget estimate based on a prevailing market price and shall update the budget estimate from time to time;
(f) for the provision of a technical advice to a procuring entity;
(g) where required by an Accounting Officer, for the participation in the evaluation of a bid;
(h) where required by an Accounting Officer, to manage a contract under the supervision of a procurement unit;
(i) for the keeping and maintenance of any record of a contract management in accordance with a record management policy of a procuring entity; and
(j) for the preparation of any report required for submission to a procurement oversight unit or an Accounting Officer.
(2) A user Department shall, in preparing a procurement plan referred to under subregulation (1), ensure that a correct method of procurement is used for each requirement of the procurement.
(3) A user Department shall not procure works, services or supplies which are not included in a procurement plan without the approval of an Accounting Officer.
11. Central agencies for common use items
(1) A central agency shall, for purposes of procurement of common use items in terms of section 51(3) of the Act—
(a) use a framework contract for a procurement of common use items based on the needs and demands of a procuring entity in accordance with these Regulations; and
(b) arrange for the procurement of common use items by a procuring entity through a framework contract.
(2) A central agency may, from time to time, provide an opportunity to any new bidder to participate in a procurement process for common use items, and the name of any successful bidder shall be included in the list of service providers and suppliers.
(3) A procuring entity shall, for purposes of procurement referred to in subregulation (1)—
(a) by the end of the month of December every year, submit to a central agency, its provisional annual budget estimates of the required common use items, in accordance with the format provided by a central agency, which shall include a description, specification, statement of requirement and quantity, of the common use items;
(b) procure common use items from a bidder who has been awarded a framework contract by a central agency through the placement of a call off order prepared by a procurement unit and approved by an Accounting Officer; and
(c) submit to a central agency, a monthly report in terms of a format provided by the central agency.
(4) A procuring entity shall, in accordance with a contract, prepare and place, a call off order to a bidder who has been awarded a framework contract, and shall—
(a) make a payment for goods and services delivered and accepted;
(b) make a claim for any damages caused by a delayed delivery of goods and services, or any other act; and
(c) report to a central agency any breach, or unsatisfactory performance.
(5) A central agency may enter into a framework contract under this regulation with more than one service provider, where in the opinion of the central agency, one service provider cannot meet a requirement of a procuring entity.
(6) A central agency shall consolidate a quarterly report submitted to the central agency by a procuring entity on a procurement made through a framework contract indicating, but not limited to, the name of the supplier, and description, quality and value of works, services and supplies, submit the quarterly report to the Authority.
(7) A central agency shall, by Notice in the Gazette, publish a list of the names of the suppliers and service providers who have been awarded framework contracts.
(8) A central agency shall make a determination on a report submitted by a procuring entity, detailing the performance of a contractor, and prepare an End of Activity Report with appropriate recommendations for submission to the Authority.
PART IV
Selection and Methods of Procurement, etc. (regs 12-32)
12. Selection of procurement method
(1) A procuring entity shall select a procurement method on the basis of—
(a) an estimated value of a procurement requirement; or
(b) the circumstances pertaining to a procurement requirement.
(2) An estimated value referred to under subregulation (1)(a) shall be the main criterion in the determination of a choice of a procurement method and the choice shall be made in accordance with the guidelines issued by the Authority.
(1) A bidding period shall be for a duration as may be necessary to accommodate the—
(a) location of a shortlisted or potential bidder and the time required for the delivery or transmission of a bid;
(b) level of detail required in a bid; or
(c) anticipated duration of a procurement process.
(2) Notwithstanding subregulation (1), a minimum bidding period shall, unless otherwise determined by the Authority, be—
(a) 20 days, in the case of an open international competitive bidding;
(b) 10 days, in the case of an open domestic bidding;
(c) five days, in the case of a selective tendering on the basis of a shortlist;
(d) five days, in the case of a direct appointment procurement;
(e) three days, in the case of a request for quotations; or
(f) 10 days, in the case of any other procurement method provided in the Act, except micro procurement which does not have a minimum bidding period.
(3) A procuring entity shall consider the risk and complexity of a procurement, when determining the appropriate bidding period of each bid.
(4) An Accounting Officer may authorise a shorter bidding period where justifiable and as may be appropriate.
14. Open domestic bidding method
(1) Except as may be provided in these Regulations, a procuring entity shall conduct procurement by means of an open domestic bidding method.
(2) A procuring entity shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish an invitation to tender, which shall be open to every bidder for the submission of a bid for the open domestic bidding method.
15. Open international bidding method
(1) A procuring entity may, with a written approval of an Accounting Officer, opt to conduct procurement by means of an open international bidding method instead of an open domestic bidding, where—
(a) competition may be enhanced by the participation of an international contractor in the bidding process, where there is limited or no domestic capacity;
(b) the participation by an international contractor may increase value for money for the procurement; or
(c) the technical complexity of a procurement requirement requires the participation of an international contractor.
(2) A procuring entity shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media, Government portal, international publication, or professional or trade journal with international circulation, publish an invitation to tender, which shall be open to every bidder for the submission of a bid for the open international bidding method.
(3) Nothing shall prevent a local contractor from participating in an open international bidding.
16. Restricted domestic bidding method
(1) A procuring entity may, with a written approval of an Accounting Officer, conduct procurement by means of a restricted domestic bidding where—
(a) the works, services or supplies are available from a limited number of service providers; or
(b) there is an exceptional circumstance that justifies a departure from the selection of an open domestic bidding method.
(2) An invitation to tender under this regulation shall, in writing, be made to a limited number of bidders without publishing the invitation to tender in the manner provided in these Regulations.
(3) A procurement entity shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish a list of an approved shortlisted bidders, except shortlisted bidders of a sensitive and classified procurement.
17. Restricted international bidding method
(1) A procuring entity may, with a written approval of an Accounting Officer, conduct procurement by means of a restricted international bidding method where—
(a) the works, services or supplies are available from a limited number of service providers; or
(b) there is an exceptional circumstance that justifies a departure from the selection of an open international bidding method.
(2) An invitation to tender under this regulation shall, in writing, be made to a limited number of bidders without publishing the invitation to tender in the manner provided in these Regulations.
(3) A procurement entity unit shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish a list of approved shortlisted bidders, except shortlisted bidders of a sensitive and classified procurement.
18. Request for quotation method
(1) A procuring entity may conduct procurement by means of a request for a quotation method where the estimated value of a procurement does not exceed the threshold stated in the guidelines issued by the Authority.
(2) Where a request for quotation method is used, a procuring entity shall make an invitation to tender in written bidding document addressed to a limited number of bidders without publishing the invitation to tender in the manner provided in these Regulations.
(3) A procuring entity shall obtain at least five quotations as may be practicable.
(4) Notwithstanding subregulation (3), where it is not practicable and subject to a written justification, a procuring entity may obtain less than five quotations.
(1) A procuring entity may conduct procurement by means of a micro procurement method where the estimated value of the project is within the related micro procurement.
(2) In using a micro procurement method, a procuring entity may select a supplier on a sole supplier basis without competition and with the following requirements—
(a) request for quotation;
(b) quotation; and
(c) purchase order.
(3) A procuring entity shall request a bidder for the original copy of an invoice or receipt denoting the works, services or supplies procured, and the price quoted and annotated with a name of the procuring entity procuring the works, services or supplies.
(4) A procuring entity shall ensure that value for money is obtained to the extent practical under a micro procurement method.
(5) An officer of a procuring entity, who is responsible for the conduct of procurement by means of a micro procurement method under this regulation, shall submit a monthly report to an Accounting Officer.
(6) An Accounting Officer shall submit a report referred to under subregulation (5) to the Authority in the manner determined by the Authority.
(7) The cumulative cost of a micro procurement in a year shall, except with the approval of the Authority, not exceed such percentage of an annual procurement budget as may be determined by the Authority.
(8) An informal sector may be exempted from the requirement under this regulation.
(1) A procuring entity may conduct procurement by means of a direct procurement method where the selection of a contractor is made on a sole supplier basis without competition and—
(a) there is insufficient time to conduct procurement by means of any other procurement method due to an emergency occurrence;
(b) the works, services or supplies are available from one contractor;
(c) any additional works, services or supplies are required to be compatible with the existing works, services or supplies, and it is advantageous or necessary to purchase the additional works, services or supplies from the original supplier, and the price of such additional works, services or supplies is reasonable;
(d) it is essential or preferable to purchase any 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, and the price on the works, services or supplies is reasonable; or
(e) can be justified in any given circumstance.
(2) A procuring entity shall not commence any procurement process under a direct procurement method without—
(a) justification to an Accounting Officer on the need to use a direct procurement method; and
(b) the approval of an Accounting Officer.
(3) A procuring entity shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish the name of a contractor who has been approved for direct procurement, except the name of a contractor who has been approved for sensitive and classified procurement.
(4) An Accounting Officer may award a tender for a procurement under this regulation if he or she is satisfied that the procurement has been sufficiently demonstrated by a procuring entity to be of value for money.
21. Request for proposals with competitive negotiations method
(1) A procuring entity shall request for an approval from an Accounting Officer to conduct procurement by means of a request for proposal with competitive negotiation method.
(2) A procuring entity shall, after the approval of an Accounting Officer in terms of subregulation (1), invite the relevant bidder to submit a bid for a competitive negotiation.
(3) An Evaluation Committee shall, where a request for proposal with competitive negotiation method is used—
(a) negotiate with a bidder on the recommendation of a procurement unit;
(b) evaluate a tender under this regulation; and
(c) prepare a report on the negotiation referred to under paragraph (a) and submit the report to a procurement unit for provisional opinion.
(4) An Accounting Officer shall request any identified bidder to revise his or her bid by submitting the best and final offer within a period not exceeding seven days from the date of such request.
(5) Any price revised in terms of subregulation (4) shall not compromise the quality and the specifications of the original tender.
(6) The report referred to under subregulation (3)(c) shall—
(a) be submitted to an Accounting Officer by a procurement unit; and
(b) form part of records.
(7) For purposes of this regulation, “request for proposal with competitive negotiations” means a method for negotiating the pricing, terms and conditions relating to a particular transaction.
22. Competitive dialogue method
(1) A procuring entity shall request for an approval of an Accounting Officer to conduct procurement by means of a competitive dialogue method.
(2) A procuring entity shall use a competitive dialogue method, in confidence, to discuss with any shortlisted bidder at a dialogue stage of a procurement process, the means by which the needs of the procuring entity can be met, before calling for a final bid.
(3) A procuring entity shall in conducting procurement by means of a competitive dialogue method adhere to the following stages, a—
(a) shortlisting stage, where a suitable bidder is selected, who meets the minimum eligibility standards for compliance, technical, financial and economic criteria;
(b) dialogue with a bidder stage, which is a critical stage to the successful application of a competitive dialogue method, where the means of meeting the project objectives is discussed and negotiation is permitted; and
(c) final tender stage, where a tender is submitted to a procuring entity after clarification, specification and fine tuning is permitted, and such clarification, specification and fine tuning do not change the basic features of the tender or a contract’s key terms, do not risk distorting competition.
(1) A procuring entity may request for an approval of an Accounting Officer to conduct procurement by means of a reverse auction method.
(2) A procuring entity may, after the approval of an Accounting Officer in terms of subregulation (1) conduct procurement by means of a reverse auction where—
(a) it is feasible for the procuring entity to formulate a detailed description of the subject matter of a procurement;
(b) there is a competitive market of suppliers or contractors anticipated to be qualified to participate in the reverse auction method, to ensure effective competition; and
(c) the criteria to be used by the procuring entity in determining the submission is quantifiable, can be expressed in monetary terms.
(3) A procuring entity may use a reverse auction as a stage preceding an award of a tender in a procurement method, as may be applicable, where there is a tie in an offer.
(4) A procuring entity may conduct procurement by means of a reverse auction for an award of a contract in a framework contract with second stage competition.
(5) A reverse auction method shall apply to works, services and supplies which have a standard and comprehensive specification.
(6) A procuring entity shall ensure that a bidding under this regulation is completed within the period specified in an invitation to tender.
(7) A procuring entity shall submit a report on any procurement made under this regulation to a procurement unit for a professional opinion.
(8) A procurement unit shall, after considering the report referred to under subregulation (7), submit such report to an Accounting Officer for an award of a tender.
(9) In the event that a successful bidder declines an offer of an award made in terms of subregulation (8), the next lowest bidder shall be offered a tender, subject to a reserve price.
(1) A procuring entity may conduct procurement by means of an unsolicited bid method.
(2) Where a procuring entity conducts procurement by means of an unsolicited bid method, a bidder assumes the responsibility for project preparation cost such as a pre-feasibility and feasibility study, design specification and any other related assessment.
(3) A procuring entity shall, when considering to conduct procurement by means of an unsolicited bid method, address the following major factors—
(a) the ownership of any intellectual property rights to a project concept;
(b) the interests of both parties in a project concept;
(c) the cost effectiveness of a project concept by sole source negotiation of the detail of the project concept;
(d) a transparent and competitive procurement process involving an unsolicited bid method; and
(e) every unsolicited bid method is channelled into a transparent and competitive process where a bidder has a fair chance of winning a tender.
(4) A procuring entity may, in conducting procurement by means of an unsolicited bid method apply a swiss challenge system to allow for the submission of competing bids to a qualifying unsolicited proposal by another bidder, through a transparent procurement process.
(5) For purposes of subregulation (4), “swiss challenge system” means a system that recognises the investment made by a project proponent in preparing an unsolicited bid proposal to the requisite Outline Business Case standard, and the original proponent is given the right to counter-match the best offer and secure a contract.
25. Best and final offer method
(1) A procuring entity may conduct procurement by means of a best and final offer method where the procuring entity presumes that a proposal received from a bidder ought to have been a better offer than the actual offer.
(2) Notwithstanding the generality of subregulation (1), a procuring entity shall conduct procurement by means of a best and final offer method—
(a) in a large or complex procurement project;
(b) where the procuring entity determines that none of the proposals submitted to such procuring entity—
(i) does not address the procuring entity’s procurement needs, and
(ii) is in some respect unclear deficient; or
(c) where the procuring entity determines that the cost of all proposals is too high.
(3) A procuring entity shall use only one best and final offer method around.
26. Negotiated procedure method
(1) A procuring entity may conduct procurement by means of a negotiated procedure method in limited circumstances as may be determined without publishing an invitation to tender.
(2) A procuring entity shall, when conducting procurement by means of a negotiated procedure method, approach one or more suppliers seeking to negotiate the terms of a contract.
(3) A procuring entity may use a negotiated procedure method for works, services or supplies in any of the following cases where—
(a) there is no tender or request to participate submitted to the procuring entity in response to any open bidding, restricted procedure or competitive procedure, under the Act, provided that the initial terms of a contract are not substantially altered and a report is submitted to the Authority upon request for submission;
(b) a tender is considered to be not suitable or irrelevant to a contract, being incapable, without substantial changes, of meeting the procuring entity’s need and requirement as specified in the procurement documents;
(c) a request to participate is considered to be not suitable where a contractor concerned is, or may be, excluded under the grounds for exclusion or does not meet the selection criteria;
(d) the works, services or supplies can be supplied by a particular contractor for any of the following reasons—
(i) that the purpose of the procurement under this regulation is for the creation or acquisition of a unique work of art or artistic performance,
(ii) where there is no competition for technical reasons,
(iii) for the protection of exclusive rights, including intellectual property rights, or
(iv) where there is no alternative or substitute and the lack of competition is not as a result of an artificial narrowing down of a procurement; or
(e) where necessary, due an emergency brought by events unforeseen by the procuring entity and not attributable to such procuring entity, and the duration for any open bidding, restricted procedure or competitive procedure for negotiation cannot be complied with.
(4) A procuring entity may use a negotiated procedure method for a public supply contract—
(a) where a product involved is manufactured purely for the purpose of a research, experimentation, study or development, and a tender that is awarded in relation to the product shall not include quantity production in order to establish the commercial viability of the product or to recover the research and development cost;
(b) for any additional delivery by the original supplier, which is intended either as a partial replacement of supplies or installations, or as an extension of the existing supplies or installations, where change of a supplier would oblige the procuring entity to acquire supplies with different technical characteristics that may result in incompatibility or disproportionate technical difficulties in operation and maintenance; or
(c) for supplies quoted and purchased on a commodity market; or
(d) for the of services or supplies on reasonable terms, from either a supplier which is winding up its business activities, or a liquidator in an insolvency procedure.
(5) A procuring entity may use a negotiated procedure method for procurement, without the prior publication of an invitation to tender, for new works and services consisting of the repetition of similar works and services entrusted to the contractor the procuring entity awarded an original contract:
Provided that such works and services are in conformity with a basic project for which the original contract was awarded but shall not exceed the applicable contract variation threshold.
(6) A procuring entity shall, when using the negotiated procedure method, ensure that the basis project indicates the extent of possible additional works or services, and the terms and conditions under which the contract was awarded.
(7) A procuring entity shall, as soon as the first project is put up for a tender, disclose the procuring entity’s intention to use the negotiated procedure method, and consider the estimated total of any subsequent works or services.
(8) For purposes of this regulation, “negotiated procedure” means a procurement process that uses negotiation with a selected supplier or service provider.
27. Expression of interest method
(1) A procuring entity may conduct procurement by means of an expression of interest method for the pre-qualification of a bidder for—
(a) the development of a supplier database; and
(b) any complex or large contracts.
(2) A procuring entity shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, international publication, or professional or trade journal with international circulation, publish an invitation to tender under this regulation, which shall state—
(a) a brief outline of the assignment;
(b) a brief description of a statement of requirement;
(c) the required information to be submitted by an interested contractor; and
(d) the duration of the assignment.
(3) A procuring entity shall, from any of the contractors who have responded to an invitation to tender under subregulation (2), shortlist a number of the contractors and directly invite such contractors to submit proposals on the bid.
(4) An invitation referred to under subregulation (3) shall include a request for proposal and the terms of reference.
(1) A procuring entity may conduct procurement by means of a hackathon method which is used for—
(a) technology to achieve a given objective;
(b) the recruitment of top talent for the provision of services and works;
(c) expeditious solving of a problem; or
(d) the growth of a business.
(2) A procuring entity that uses a hackathon method in the conduct of the procuring entity’s procurement shall be such procuring entity that has—
(a) a paying customer or any other form of motivation to participate in a bid;
(b) a team or contractors that are willing to play a part in the hackathon method;
(c) a problem to solve;
(d) any agreed rules of engagement between the procuring entity and a contractor; and
(e) a platform for the hackathon method, whether electronic or in person.
(3) A procuring entity shall, in conducting procurement by means of a hackathon method use a procurement process as follows—
(a) comply with the registration requirements as part of the hackathon method; and
(b) apply technical evaluation as part of the hacking duration.
29. Community participation method
(1) A procuring entity may conduct procurement by means of a community participation method where the procuring entity may involve a beneficiary community to participate in the delivery of services if such procuring entity considers that the beneficiary community shall contribute to—
(a) the economy;
(b) value for money;
(c) the sustainability of the project; and
(d) the socio-economic objectives.
(2) A community participation method may involve two approaches—
(a) a direct participation of a beneficiary community; or
(b) an organised participation of a beneficiary community through the appointment of a community based service provider.
(3) Where a procuring entity intends to use a community participation method for procurement, the procuring entity shall ensure that a project—
(a) is aligned to such procuring entity’s mandate and annual strategic procurement plan;
(b) has positive socio-economic outcomes with a community as its main beneficiary;
(c) requires the involvement of a community in part or in whole for its success and its continued implementation;
(d) is included in the annual strategic procurement plan for such procuring entity; and
(e) proposal is prepared in line with such procuring entity’s annual strategic procurement plan, which shall set out the—
(i) key result areas and the specific roles of a beneficiary community; and
(ii) objectives, estimated budget and a beneficiary community.
(4) A procuring entity that uses a community participation method for the procurement of the delivery of services shall do so in accordance with the guidelines issued by the Authority.
(5) An Accounting Officer shall, for purposes of this regulation, appoint a project supervisor who may be the head of a user department, or a procurement agent or procurement service provider, where a procuring entity does not have capacity to supervise a project.
30. Emergency procurement method
(1) A procuring entity may, on request to, and upon the approval of, an Accounting Officer, conduct procurement by means of an emergency procurement method where—
(a) the circumstances to procure permit the procuring entity to use an emergency procurement method, regardless of the estimated value of a requirement for a tender; or
(b) the procuring entity could not have foreseen an emergency, which may not be as a result of the negligence of such procuring entity.
(2) Notwithstanding the generality of subregulation (1), a procuring entity may use an emergency procurement method where—
(a) the country is either threatened by or confronted with a disaster, catastrophe, war or an act of God;
(b) life or environment may be compromised;
(c) the condition or quality of goods, equipment, buildings or capital works may deteriorate unless an action is urgently and necessarily taken to maintain the goods, equipment, building or capital works in its actual value;
(d) a commodity has been identified as a supply risk in the risk log of a procuring entity and such supply risk is a national or global risk; or
(e) a procurement lead-time involved is such that it will jeopardise the ability of the procuring entity to achieve any major objective where there may be a national or global risk of supply if a normal procurement method is used.
(3) A procuring entity may motivate its request referred to under subregulation (1) and in doing so, the procuring entity shall include a comprehensive justification on the need to use an emergency procurement method.
(4) Where a procuring entity conducts procurement by means of an emergency procurement method, the procuring entity shall ensure competition by bidders to the maximum extent practical in an emergency circumstance.
(5) A procuring entity shall, in an emergency situation and where practical, consider the use of any other procurement method before the procuring entity decides on the use of an emergency procurement method.
(6) A procuring entity shall, notwithstanding that an emergency arises outside working hours or working day, conduct a procurement under this regulation and in writing request an Accounting Officer to approve such procurement, stating the reasons for the emergency and the justification for a departure from any procedure provided under these Regulations.
(7) Where an Accounting Officer approves an emergency procurement method, a procuring entity shall, where applicable, prepare a plan to indicate the steps to be taken to prevent a similar event, and inform the Authority.
(8) A procuring entity may, for purposes of this regulation and in exceptional cases or where practical, deviate from the use of a standardised bidding document issued by the Authority.
(9) A procuring entity shall prepare any supporting document for a procurement under this regulation, and submit the supporting document to an Accounting Officer for approval.
(10) An Accounting Officer shall keep and maintain a log for every procurement made under this regulation and submit the log to the Authority.
(11) A submission referred to under subregulation (1) shall be made quarterly in every financial year.
(12) An Accounting Officer shall ensure that in conducting procurement by means of an emergency procurement method, the risk of fraud, inflated prices, conflict of interest, unfairness corruption or any other matter associated with the risk that comes with the emergency procurement method, is reduced or managed appropriately in accordance with the relevant laws.
31. Procurement of highly sensitive works, services or supplies
(1) An Accounting Officer shall, where a procuring entity undertakes the procurement of highly sensitive works, services, supplies or any combination thereof, however classified, submit to the Authority, a restricted list of the category of restricted items referred to under section 54(3)(a) of the Act, which shall include—
(a) the justification for the restricted procurement of each category of the items on the restricted list;
(b) the description and quantity of each category of the items required;
(c) a budgetary provision; and
(d) the proposed procurement method to be used for each category of the items and the justification of such procurement method.
(2) A restricted list referred to under subregulation (1) shall—
(a) be in Form B set out in Schedule 1; and
(b) form part of the strategic capital acquisition management plan as a special category for special projects in line with the national defence strategy.
(3) A procuring entity shall, where the procuring entity undertakes the procurement of highly sensitive works, services, supplies or any combination thereof, however classified, covering items that are subject to a direct procurement method provided under regulation 20, record the direct procurement method in the strategic capital acquisition management plan as an urgent procurement, and contract any additional life-cycle activity, where necessary, according to the policy, process and procedure for the acquisition of armaments to ensure the integrity of the system and value for money.
(4) A procuring entity that undertakes the procurement of highly sensitive works, services, supplies or any combination thereof, however classified, which fails to submit a restricted list to the Authority in terms of subregulation (1) shall be—
(a) deemed to be conducting such procurement on the basis of an open list;
(b) subject to the requirements of procurement under the Act; and
(c) subject to an investigation relating to irregular expenditure.
(5) An Accounting Officer shall appoint an integrated project team which shall consist of a representative from a—
(a) user department who shall be the project officer; and
(b) procuring entity responsible for contracting.
(6) An Accounting Officer shall submit a report quarterly, detailing the procurement of highly sensitive works, services, supplies or any combination thereof, by a procuring entity, to the Authority.
(7) An Accounting Officer shall, where a procurement need arises, which was not included in the restricted list referred to in subregulation (1), submit a supplementary restricted list to the Authority.
(8) Any procurement made under this regulation shall be monitored by the Authority to ensure that the procurement is in accordance with these Regulations.
32. Procurement of medicines and related medical supplies
(1) A procuring entity shall, where the procuring entity procures medicines and the related medical supplies, ensure that the procurement of such medicines and related medical supplies is in compliance with these Regulations.
(2) An Accounting Officer shall establish an appropriate structure for the procurement quality assurance, logistics management, finance management, contract management, legal matters, operations or any other associated support structures for the provision of medicines and related medical supplies by a procuring entity.
(3) An Accounting Officer shall, when procuring medicines and related medical supplies—
(a) use the latest standardised guidelines, for the efficient and effective procurement of medicines and related medical supplies in order to improve availability;
(b) utilise pooled procurement regionally and internationally where available to reduce any costs associated with a procurement under this regulation; and
(c) utilise pooled procurement and any other sources through development partners and supranational organisations.
(4) Notwithstanding subregulation (3)(b) and (c), an Accounting Officer shall ensure that a procuring entity procures locally manufactured works, services and supplies in accordance with Part XI of the Act.
(5) An Accounting Officer shall—
(a) approve the variation of a contract relating to strength, pack size or artwork without going through a formal procurement process where there are similar alternative strength, pack size or artwork subject to consideration of a price;
(b) implement a seamless accounting system to finance healthcare supply chain in order to avoid severance of the supply chain activities and associated inefficiencies;
(c) place an order through commitment letters with a confirmed issuance of a Government purchase order for any confirmed quantity secured with a manufacturer;
(d) identify and select key suppliers on periodic basis for critical lifesaving and quality improvement of medicines and related medical supplies in consideration of locally manufactured works, services or supplies; and
(e) in utilising development partners, pooled procurement and supranational organisations referred to under subregulation (3)(c) and (d), request for approval from the Authority to, use any provided system, standard agreement, and derogate from using any standard document, which would ensure good procurement practice and sustainability.
PART V
Procedure and Processes of Procurement by Procuring Entities (regs 33-43)
(1) A procuring entity shall make a proposal for an annual or periodic procurement planning and integrate the proposed annual or periodic procurement planning with the applicable budget processes, based on any approved or indicative budget, as may be appropriate.
(2) A procuring entity shall revise or update a procurement plan, as may be necessary, after the approval of a budget for a financial year.
34. Contents of annual procurement plan
(1) An annual procurement plan for each financial year shall include—
(a) a detailed breakdown of the works, services or supplies required by a procuring entity and their priority, and an indication as to whether it will be necessary to carry out a prior study for a tender of such works, service or supplies;
(b) a schedule of the delivery of the works, services or supplies, and the implementation or the completion date for such works, services or supplies required by a procuring entity;
(c) an indication of the items that can be aggregated for procurement as a single package or for procurement through any applicable arrangement for common use items;
(d) an estimate of the cost of each package of works, services or supplies required by a procuring entity, and the details of the budget available and the sources of funding;
(e) information on the rules applicable to a procurement where the procurement is not subject to the provisions of the Act;
(f) an indication of the anticipated procurement method for each procurement requirement, including any need for pre-qualification, and the anticipated time for the completion of the procurement, taking into account the applicable approval requirements; and
(g) any other information as the Minister may determine, after the approval of the Minister.
(2) An annual procurement plan referred to in subregulation (1) shall be submitted by an Accounting Officer to the Authority in Form C set out in Schedule 1.
35. Aggregation of procurement requirements
(1) A procuring entity may aggregate a procurement requirement, as may be necessary, in order to achieve the economies of scale.
(2) A procuring entity shall, in deciding whether an aggregate is necessary, consider all the relevant factors, including the—
(a) items that are of a similar nature and are likely to attract the same bidders;
(b) items that will be ready for bidding at the same time, and when delivery, implementation or completion shall be required by the procuring entity;
(c) optimum size and type of contract to attract the most responsive competition, taking into account the market structure for the items required by the procuring entity;
(d) need to apply any reservation to promote the participation of a local supplier, local manufacturer or producer, or a target citizen;
(e) items that will be subject to the same bidding requirements and the terms of a contract;
(f) potential by a procurement to realise savings or transaction cost, or facilitate a contract management by the procuring entity;
(g) preferential and reservation scheme in order to promote economic empowerment and locally manufactured or produced works, service or supplies;
(h) capacity and strength of a bidder;
(i) development of a supplier, particularly a local manufacturer or producer, or a targeted citizen, in order to strengthen and enhance competition;
(j) different supply chain management and inventory management strategy in order to promote the business of a local manufacturer or producer, or a targeted citizen, and to manage business cost; or
(k) accessibility to an international manufacturer or preferred supplier, an international procurement agent or foundation, supranational organisation, a development partner or a pooled procurement, where works, services or supplies are not available in Botswana.
36. Division of procurement requirement into lots
(1) A procuring entity may, upon the approval of the Accounting Officer, divide a procurement requirement, which can be procured as a single contract, into several lots to be tendered together, where it is anticipated that an award of several separate contracts may result in the best overall value for the procuring entity.
(2) The Accounting Officer may approve a division of 1000 words a requirement into separate lots where the division is likely to increase the number of the responsive bids.
(3) A procuring entity shall not divide a procurement into lots—
(a) where an award of several separate contracts would create a challenge of compatibility or inter-changeability between items purchased as separate lots;
(b) where an award of several separate contracts would invalidate or otherwise restrict any supplier’s warranty or liability; or
(c) where an award of several separate contracts would increase the cost of servicing, maintenance or similar requirement.
37. Initiation of procurement process
(1) A procurement requirement shall be initiated by a user department using a procurement requisition in Form D set out in Schedule 1, which shall include—
(a) a statement of the procurement requirement;
(b) the estimated value of works, services or supplies; and
(c) the detail of the funds budgeted for the procurement requirement, including any funds from future budget for any multi-year contract or donor.
(2) A user department shall, in preparing a statement of a procurement requirement, seek technical advice as may be necessary.
(3) A user department shall, in estimating the value of works, services or supplies, ensure that the estimation is realistic and based on an up-to-date information relating to economic and market conditions.
38. Approval of requisition to procure
(1) An Accounting Officer shall approve a requisition to procure by a user Department before the initiation of a procurement process.
(2) The approval of a requisition referred to in subregulation (1) shall include confirmation of the—
(a) need for the items listed in the requisition and the authority to proceed with a procurement; and
(b) availability of funds for a procurement.
(3) A requisition approved in terms of this regulation shall be submitted by a user Department to a procurement unit to initiate a procurement process.
(4) A procurement unit shall ensure that adequate funds are budgeted for a procurement process prior to the initiation of the procurement process, taking into account all costs involved in such procurement process, including any funds required for the publication of any notice.
(5) The costs involved in a procurement process may, in addition to a total contract price, include the following—
(a) a contingency plan, including any anticipated contract variation, exchange rate fluctuation or allowance for price adjustment;
(b) the costs relating to the successful delivery of a procurement requirement for which a procuring entity is liable, including freight, insurance, customs clearance, inland delivery, import tax or duty, inspection, installation or any costs relating to a service or maintenance agreement;
(c) the costs relating to a facility, service or resources to be provided by a procuring entity, particularly costs on office space or communication facility for a procurement agent or procurement service provider;
(d) the cost of any linked contract, which is necessary for the successful implementation of the procurement process; and
(e) any other costs such as levies or value added tax, or costs deemed to be justifiable by a procuring entity.
(6) Where a procuring entity initiates a procurement process for a multi-year contract or a framework contract, the procuring entity shall ensure that funds for the—
(a) current financial year are budgeted for; and
(b) future financial year are included in a budget for a subsequent financial year.
(1) A procuring entity shall ensure that funds are available for procurement, and shall, in Form E set out in Schedule 1, confirm the availability of such funds before commencing a procurement process.
(2) Notwithstanding subregulation (1), a procuring entity may commence a procurement process for a scheduled or routine activity if the procuring entity is certain of the availability of funds for such activity.
40. Standardisation of procurement
(1) A procuring entity may submit a proposal for the standardisation of works, service or supplies to the Authority for approval.
(2) A proposal referred to in subregulation (1) shall include—
(a) the technical, economic and logistical justification for the standardisation of works, services or supplies;
(b) the justification for the choice of the proposed standardisation of works, services or supplies;
(c) a projection for future procurement of the object of the standardisation of works, services or supplies;
(d) any plan to ensure transparency and value for money in procurement of the standardised works, services or supplies; and
(e) any other information that may be relevant to the proposed standardisation of works, services or supplies.
(3) An approval of a standardisation of works, services or supplies in subregulation (1) shall be for such period as the Authority may determine, and after the period lapses, a procuring entity shall review the standardised works, services or supplies.
(4) Where a procuring entity decides to continue with a standardised works, services or supplies after a period referred to in subregulation (3), the procuring entity shall, in writing within 14 days, submit its proposal to continue with the standardised works, services or supplies to the Authority for approval, accompanied by—
(a) an updated technical, economic and logistical justification of the proposed continuation of such standardised works, services or supplies, indicating any change;
(b) an updated justification for the choice of such standardised works, services or supplies, including the advantage, if any, of the standardised works, services or supplies and any change since the application of such standardised works, services or supplies;
(c) the original projection for procurement, the actual volume and value of the procurement of such standardised works, services or supplies during the period of the validity of the standardised works, services or supplies, and future procurement of the object of such standardised works, services or supplies;
(d) any plan to ensure transparency and value for money in the procurement of such standardised works, services or supplies; and
(e) any other information that may be relevant to the proposed continuation of such standardised works, services or supplies.
(5) The Authority shall, after receipt and upon consideration of a proposal referred to under subregulations (1) and (4)—
(a) approve the proposal, and in writing, state the grounds for the approval of the proposal; or
(b) reject the proposal, and in writing, state the grounds for the rejection of the proposal.
41. Categorisation of works, services or supplies
(1) A procuring entity may categorise works, services or supplies of a similar or related nature where such categorisation is practicable and may not cause unreasonable delay in a procurement process.
(2) A procuring entity may, in categorising works, services or supplies, appoint a procurement agent or a procurement service provider, or request any other procuring entity, to perform the services involving such categorisation.
(3) A procuring entity may unbundle the categorisation of works, services or supplies in order to enhance the participation of a targeted citizen in accordance with the Economic Inclusion Act (Act No. 26 of 2021).
(4) A procuring entity shall debit a procurement requirement to different vote sub-heads which shall only be combined into one tender where all costs of a procurement can be easily identified and separately debited.
(5) A procuring entity shall not divide a procurement into separate tenders for the purpose of avoiding a domestic or an international competitive bidding or selection, except where unbundling is allowed to enable the participation of a citizen.
(6) A procuring entity shall develop a supply chain management strategy that shall deliver a long-term value for the procuring entity by ensuring that the acquisition and the delivery of works, services or supplies is effective, responsive and cost-effective, and by delivering innovative solutions.
(7) A categorisation of works, services or supplies shall—
(a) include a tailored acquisition process;
(b) incorporate technology and innovation, or a consideration to minimise waste, such improved packaging and production, and take-back schemes; and
(c) include a cost-effective delivery method with a solution that promotes best value for money.
(8) A procuring entity shall—
(a) analyse spend category and volume of works, services or supplies;
(b) engage in regular analysis of the needs of a user and of a supply market;
(c) create value to improve the total cost ownership and consider quality, innovation, the safety of supply and risk management;
(d) adopt a proactive stance in the development of a category strategy; and
(e) assign a responsibility and process for the development and implementation of a category strategy, including the responsibility to involve a stakeholder and to manage a contract.
(9) A procuring entity shall be responsible for defining the relevant strategy for the category of the procuring entity.
(1) A procurement entity shall, when considering a potential source for any procurement requirement, consider all relevant factors, including—
(a) the competitiveness of a domestic, regional or an international market for the works, services or supplies in order to ensure value for money;
(b) the likely interest of a domestic, regional or an international bidder, given the size and nature of a procurement requirement;
(c) whether an item should be purchased from a manufacturer, or from distributor or agent;
(d) any restriction relating to existing copyrights, intellectual property rights, patent or proprietary rights;
(e) whether there is a functionally equivalent works, services or supplies which would meet the needs of a procuring entity;
(f) any applicable law that restricts any potential source;
(g) the need for compatibility or inter-changeability with any existing works, services or supplies;
(h) the requirements for the service and maintenance of any item purchased and any restriction related to the conditions of warranty;
(i) any impact on conditions of warranty or the liability of a supplier, where an alternative supplier is used for additional work or continued work;
(j) any potential benefit, particularly the use of any experience acquired or any saving in the mobilisation of costs;
(k) any applicable international agreement or obligation; and
(l) the complexity of the supply chain and the availability of a commodity in the local market.
(2) Any recommendation to use a limited number of suppliers or a single source as the criterion for determining the choice of a procurement method shall include a—
(a) comprehensive analysis of the market for the required works, services or supplies;
(b) detail of the relevant factor referred to in subregulation (1);
(c) statement that no other source could be used to open a procurement requirement to a more competitive procurement method; and
(d) justification for restricting the number of potential sources.
43. Pre-qualification of bidders
(1) A procuring entity may use a pre-qualification process where—
(a) the works, services or supplies required by the procuring entity are highly complex, specialised or require a detailed design or methodology;
(b) an evaluation is detailed and the evaluation is of a large number of bids, which would require an excessive time and resources from the procuring entity;
(c) the quality and the performance is of primary importance for the supply, of works, services or supplies, or of equipment, or the supplier’s back up and maintenance service is critical; or
(d) a shortlist of capable bidders is required for bidding.
(2) An Accounting Officer shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish information relating to a pre-qualification, which shall include—
(a) the name and address of a procuring entity;
(b) the nature, quantity and location of works to be undertaken, the nature and location of services to be provided, or the nature, quantity and place of the delivery of the supplies;
(c) the completion of works, the timetable for the provision of services, or the desired or required time for the delivery of supplies;
(d) the criteria and procedure to be used for the evaluation of the qualification of a bidder;
(e) the price, currency and terms of payment for the pre-qualification document;
(f) the means of obtaining a pre-qualification document and the place from which the pre-qualification document may be obtained;
(g) the language in which a pre-qualification document shall be available;
(h) the place, manner and deadline for the submission of an application for pre-qualification;
(i) a minimum bidding period as may be applicable; and
(j) any other information as the Accounting Officer may consider necessary.
(3) An Accounting Officer shall approve a pre-qualification document before the pre-qualification document is issued to a bidder.
(4) Any invitation for a pre-qualification issued in terms of this regulation, which has not been approved by an Accounting Officer shall not be invalid.
(5) Where a procuring entity undertakes a pre-qualification, the qualification of a bidder by the procuring entity shall be based on compliance and technical requirements, including—
(a) the experience and past performance of the pre-qualification applicant;
(b) the pre-qualification applicant’s knowledge of the labour laws;
(c) the capability of the pre-qualification applicant with respect to personnel, equipment and construction or manufacturing facility;
(d) the financial position of the pre-qualification applicant;
(e) any commitment of the pre-qualification applicant; and
(f) the compliance by the pre-qualification applicant with any legal requirement.
(6) A procuring entity shall, after receipt of a pre-qualification application, evaluate the pre-qualification application in accordance with these Regulations.
PART VI
Standardised Bidding Packages and Bidding Processes (regs 44-48)
(1) A procuring entity shall state its procurement requirement for works, services or supplies in—
(a) writing, in the standardised bidding package and contract issued by the Authority in terms of section 56(1) of the Act; and
(b) accordance with the type, value and relative complexity of the procurement requirement.
(2) A bidding document issued by a procuring entity in terms of section 56(4) of the Act shall include—
(a) an invitation to tender and an instruction on the—
(i) preparation and submission of a bid,
(ii) date, time and address for receipt of a bid,
(iii) place and time of a bid opening,
(iv) non-refundable cost of a bid document,
(v) pre-bid meeting or site visit where necessary,
(vi) reservation scheme that may be applicable,
(vii) requirements for registration,
(viii) contact person, and
(ix) any other information that may be necessary;
(b) a returnable form;
(c) the general conditions of a contract or a statement of the general conditions that shall apply;
(d) the special conditions of a contract;
(e) an integrity agreement in Form F Set out in Schedule 1;
(f) a statement of a procurement requirement or scope of work, or terms of reference or bill of quantities;
(g) a schedule of a procurement requirement and a price schedule;
(h) a statement of the qualification documentation to be provided by a bidder;
(i) the contract form, a statement of the contract or an order document that shall apply;
(j) the arrangement for securities, guarantees or any other document of security, where required; and
(k) an instruction to a bidder to indicate the kind of information the bidder would not want to be disclosed by the procuring entity to a third party.
(3) The Minister shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish a schedule of the cost of a bidding document that shall be sold to a prospective bidder.
45. Selection of standardised bidding package
(1) A user Department shall select a type of a standardised bidding package and contract as part of a procurement planning process, taking into account the—
(a) nature, value and complexity of a procurement requirement;
(b) need to offer an equitable contract to every bidder to ensure effective competition;
(c) need to maximise value for money and minimise risk for a procuring entity;
(d) likelihood of any delay or unforeseen circumstances requiring contract variation;
(e) need for effective contract management and cost control; and
(f) resources available for the monitoring of a contract.
(2) A procurement oversight unit shall recommend the use of an applicable type of a standardised bidding package and contract from among the types of the standardised bidding packages issued by the Authority.
(1) A tender document shall state the period for which a bid shall remain valid.
(2) The validity period of a bid shall be calculated from the closing date of the submission of the bid and shall remain in force until the close of a business on the last day of the validity period of such bid.
(3) A procuring entity shall, when determining the duration of the validity period of a bid, allow sufficient time to enable the procuring entity to—
(a) undertake an evaluation, post-qualification and negotiation;
(b) conduct adjudication and make an award of a tender;
(c) allow a bidder to challenge a decision by such procuring entity to award a tender, before a contract is concluded; and
(d) prepare a letter of acceptance or a contract, and obtain the necessary approval before the issuance of the letter of acceptance or contract, within the validity period of a bid.
(4) A procuring entity shall, where necessary, request for an approval of an Accounting Officer for the procuring entity to request, in writing, a bidder to extend the validity period referred to under subregulation (2) for a minimum period to complete the processes referred to under subregulation (3), before the expiry of the validity period of a bid.
(5) A bidder may extend the validity period of a bid before a decision by a procuring entity to award a tender is made.
(6) A procuring entity shall, where a bidder extends the validity period of a bid, not permit the bidder to change the price or any other detail of the bid.
(7) An Accounting Officer shall, when considering a request from a procuring entity in terms of subregulation (4), take into account and weigh several factors including, but not limited to—
(a) the amount of time that has passed following the closure of a tender;
(b) the nature of the procurement;
(c) public interest in the procurement;
(d) the stage of the procurement;
(e) whether a cancellation of a tender may result in the prejudice of a bidder; or
(f) whether a bidder stands to suffer any prejudice due to an extension of the validity period of a bid.
(8) Where a bidder refuses to extend the validity period of, or revalidate, a bid, upon the request of a procuring entity, the bidder’s bid shall be disqualified from further evaluation without forfeiting the security of such bid, where applicable.
47. Statement of procurement requirement
(1) A procuring entity shall define a statement of a procurement by specification of the procurement requirement, and such requirement specification shall contain a complete, precise and description of such procurement requirement, and shall include, where appropriate —-
(a) a specification issued without a reference to a particular trademark, brand name, patent, design, type, specific origin, producer, manufacturer, catalogue or numbered item;
(b) in the case where there is insufficient precise or intelligible way of characterising a procurement requirement except by the use of a reference under paragraph (a), a specification issued with such reference which shall include the words “or equivalent” and serve as a benchmark during an evaluation process;
(c) in the case where a standardisation of works, services or supplies is adopted by the procuring entity, a specification issued with a reference under paragraph (a);
(d) a dimension, symbol, terminology, language, packaging, marking and labelling of the supplies required in accordance with industry standards issued by the Authority under the Act;
(e) the national or international standard, where available, or the industry standards referred to under paragraph (d); and
(f) specific description of a procurement requirement based on the needs of an existing infrastructure.
(2) A bidding document shall state, where applicable, the mandatory certification issued by the relevant authority.
48. Pre-bid meetings and site visits
(1) A procuring entity may hold a pre-bid meeting or conduct a site visit in order to allow a potential bidder to either seek clarification or have access to a project site.
(2) A procuring entity shall include in a bidding document, an arrangement for a pre-bid meeting or a site visit, and such meeting or visit may be virtual, digital, electronic or physical interaction, as may be applicable.
(3) A procuring entity shall give a potential bidder reasonable notice of any pre-bid meeting or site visit, within a specified validity period of a bid, and where necessary, the procuring entity shall extend the period of such notice.
(4) A procuring entity shall hold a pre-bid meeting or a site visit for such time as may be reasonable for a bidder, in order to enable the bidder to consider any additional information that may be necessary in the preparation of a bid.
(5) A bidder may, in a pre-bid meeting or site visit, request a procuring entity for an additional time, and the procuring entity may consider such request and communicate the decision to all participating bidders.
(6) A procuring entity shall cause proper minutes of a pre-bid meeting or site visit to be taken and recorded, and a copy of such minutes shall be provided to a bidder who has been issued with a bidding document.
(7) A procuring entity shall manage and be in charge of a pre-bid meeting or site visit.
PART VII
Procedure for Tender Submission, Tender Opening and Evaluation, De-Briefing of Bidder and Cancellation of Procurement Process (regs 49-66)
49. Methods of submission of bids
(1) A bidding document shall contain an instruction on the method of the submission of a bid, which shall be—
(a) a single envelope or package submission, in which a tender document containing the financial and technical officer of a bidder is submitted together in one sealed envelope or packaging;
(b) a dual envelope or package submission, in which the technical offer from the bidder is placed in one sealed envelope or package marked “technical offer”, and the financial offer from a bidder is placed into a second sealed envelope or package marked “financial offer”; or
(c) any other submission as may be determined by the Authority.
(2) A bidding document shall state that a bid shall be firmly bound, submitted in an envelope or package, securely sealed in such manner that does not allow for the envelope or package to be easily opened and resealed.
(3) A bidder may, subject to subregulation (2), use a preferred method of sealing of an envelope or a package.
(4) A procuring entity shall, during a bid opening, reject any envelope or package that is not sealed in such manner as provided under subregulation (2).
(5) A bidding document shall contain an instruction on the detail of the labelling and a reference to be written out on each envelop or package which shall include—
(a) a procurement reference number and description;
(b) the name, telephone number and postal address of a bidder;
(c) the technical or financial information of a bidder; and
(d) an original tender document clearly marked “ORIGINAL”, and two copies of the original tender document each dearly marked “COPY”, of the bid submission.
(6) A contractor who responds to a tender shall submit one original copy of a bid document to be used by an Evaluation Committee, and two duplicate copies of the bid document, one copy to be used by a procurement oversight unit and one copy to be photocopied for use by an evaluator.
50. Receipt of bid and bid opening
(1) A bidding document shall contain an instruction for the time, date and place for the submission of a bid.
(2) A procuring entity shall ensure that the closing date to bid falls on a working day, and where a closing date to bid falls on a Saturday, Sunday or a public holiday, the procuring entity shall allow a bid document to be submitted at a time originally stipulated in the Tender Notice.
(3) In addition to any other procurement requirement in a bid document, a procuring entity shall immediately return a bid document submitted after the closing date to bid to the bidder, unopened and marked “late bid document”, together with a date and time on which the procuring entity received the bid document.
(4) A procuring entity shall extend the closing date to bid where the procuring entity provides sufficient evidence that there is need for such extension to an Accounting Officer, or as the case may be, where there is sufficient time to publish an amendment notice before the closing time to bid.
(5) The procedure for an opening of a bid shall be—
(a) a public opening of a bid which may be witnessed by a representative of a bidder, either virtually or physically, or through a live streaming as may be determined by a procuring entity; or
(b) a private opening of a bid which shall be witnessed by at least three members of staff of a procuring entity, including one staff member of a procurement oversight unit.
(6) Notwithstanding subregulation (5), a procuring entity shall allow any interested representative of a bidder and the general public to attend every opening of a bid.
(7) A procuring entity shall—
(a) keep and maintain a record of the—
(i) opening of a bid in single envelope or package, in Form G set out in Schedule 1,
(ii) opening of a bid for technical offer in dual envelope or package, in Form H set out in Schedule 1, and
(iii) opening of a bid for financial offer in dual envelope or package, in Form I set out in Schedule 1; and
(b) in the case of a private opening of a bid, avail to, a representative of a bidder a copy of the record referred to in paragraph (a).
(1) A bidding document shall include an instruction that a bidder may withdraw, modify or replace a bid by notice to an Accounting Officer at any time before the closing date to bid, for the approval of the Accounting Officer.
(2) A withdrawal, modification or replacement of a bid referred to in subregulation (1) shall be opened, read and recorded at the opening of the bid in accordance with the guidelines issued by the Authority.
(3) A bidder who wishes to withdraw, modify or replace a bid shall do so in writing, and submit in the same manner as the submission of a bid, in an envelope or package marked “WITHDRAWAL”, “MODIFICATION” or “REPLACEMENT”.
(4) The re-submission of a bid shall be marked “REPLACEMENT BID” or “SUPPLEMENTARY BID” on the outer envelope or package.
(1) An Evaluation Committee shall—
(a) evaluate a bid received in accordance with a tender document;
(b) evaluate a bid received to determine compliance with bidding document, technical responsiveness and undertake an analysis of value for money of the bid; and
(c) during an evaluation of a bid, not consider any factor that is not expressly provided for or national standard specification in a tender document unless there are extenuating circumstances to use an industry standard.
(2) An Evaluation Committee shall, when analysing value for money, where applicable, compare bid prices previously obtained through a competitive procedure in respect of a similar procurement, or a breakdown analysis of any current component costs for a base item, freight and insurance elements, taking into account the circumstances and the value of the procurement.
(3) An Evaluation Committee shall, during the evaluation of a bid, carry out a preliminary examination of the bid to determine whether—
(a) a bid has met all the requirements for tender compliance and the bidding document has been properly signed;
(b) where a bidder has failed to submit, or has submitted incomplete administrative documents or information as may be guided by the Authority, the Evaluation Committee shall request the bidder to submit such documents or information within five days; and
(c) the required securities have been provided.
(4) An Evaluation Committee shall assess a bid to determine any substantial response to a procurement requirement of a tender document.
(5) A bid shall be considered to be substantially responsive if it conforms to all the terms, conditions and specifications of a tender document without any material deviation.
(6) A decision of an Evaluation Committee shall be made through an agreement by all members or the majority members of the Evaluation Committee.
(7) Where a member of an Evaluation Committee does not agree with a decision of the majority members of the Evaluation Committee, such Evaluation Committee shall ensure that an evaluation report indicates the disagreement.
(8) An Evaluation Committee shall keep and maintain an individual score sheet or evaluation sheet as a record of an evaluation process, and shall submit the individual score sheet or evaluation sheet with a consolidated report to a procurement unit.
(9) An evaluation report shall be signed by all members of an Evaluation Committee in attendance.
(10) An evaluation report shall—
(a) set out the reasons upon which the consideration of a preferred bidder is based; and
(b) together with the original bidding document, be submitted to a procurement unit by an Evaluation Committee for quality examination and if satisfied, the procurement unit shall forward the evaluation report and the bidding document to a procurement oversight unit for pre-adjudication.
(11) An Evaluation Committee may conduct an electronic evaluation in accordance with the National Electronic Procurement Regulations.
(12) An Evaluation Committee may, in determining a preferred bidder, where applicable and in accordance with a bidding document consider the following, the—
(a) reasonableness of the bid price, subject to any existing reservation and preferential scheme applied;
(b) total life cost where applicable;
(c) time for the delivery of the supplies;
(d) completion of works or the provision of services;
(e) functional characteristics of the works or supplies;
(f) terms of payment and of guarantees in respect of works, services or supplies; and
(g) any other relevant factors.
(13) Where a price of a bid is expressed in two or more currencies, an Evaluation Committee shall convert the price of the bid to the Botswana Pula currency, for purposes of evaluating and comparing all bids before the Evaluation Committee.
(14) An Evaluation Committee shall, when converting a currency in terms of subregulation (16) use the exchange rates provided by the Bank of Botswana established under the Bank of Botswana Act (Cap. 55:01), as may be applicable to any similar transaction at the time of the closing of a tender.
(15) A material deviation to commercial terms and conditions by a bid shall justify a rejection of the bid by an Evaluation Committee, and such material deviation shall include—
(a) the failure to submit a completed form of offer and acceptance, and price schedules or bill of quantities, by an authorised person;
(b) the failure by a bidder to comply with the requirements for eligibility;
(c) the failure by a bidder to submit a security for a tender as specified in a tender document;
(d) the inability by a bidder to meet the critical delivery schedule or work schedule as specified in a tender document, where such schedule is a crucial condition which the bidder should comply with;
(e) the failure by a bidder to comply with the minimum experience criteria as specified in a tender document;
(f) a condition in a tender which limits the responsibility of a bidder to accept an award of the tender;
(g) the inability of a bidder to accept a price adjustment formulae of a tender document;
(h) a refusal by a bidder to accept a correction of an arithmetical error made pursuant to a tender document;
(i) a bidder who demands a price adjustment where a fixed price of a tender is invited;
(j) a bidder who subcontracts in a substantially different amount or manner than that permitted by a procuring entity; or
(k) any other relevant factors.
(16) An Evaluation Committee shall examine every bid for substantial response to a technical requirement of a bidding document, and where a bid does not conform to the technical requirement the Evaluation Committee shall make a recommendation to reject the bid for—
(a) failure by a bidder to bid for the required scope of work as instructed in the bidding document;
(b) failure by a bidder to meet technical requirement, particularly where the bidder offers a different type of equipment or material from the specified equipment or material, plant capacity of the bidder if well below the specified minimum, or the equipment of the bidder is unable to perform any basic function for which it is intended; or
(c) any other reason related to technical requirements.
(17) An employee of a procuring entity who took part in the preparation of a bidding document may participate in an evaluation of a bid where the employee’s expertise is required, and at the first meeting of an Evaluation Committee, an Accounting Officer shall ensure that all members of the Evaluation Committee are available for the duration of the evaluation according a work plan of such Evaluation Committee.
53. Clarification of bids during evaluation process
(1) An Evaluation Committee may, in writing, request a bidder for clarification of a bid received by a procuring entity from the bidder who shall, provide a written response to the Evaluation Committee.
(2) Any amendment to the substance of a bid, including the amendment of the price of a bid, shall not be sought, offered or permitted after the clarification referred to in subregulation (1).
(3) Any engagement between an Evaluation Committee and a bidder shall be in writing and the Evaluation Committee shall not entertain any informal communication, meeting or any other contact with the bidder.
(4) An Evaluation Committee shall handle every request for clarification of a bid through an official communication channel within a procuring entity, and the Evaluation Committee shall not allow any direct dealing between such Evaluation Committee and a bidder.
54. Evaluation of single envelope or package bid
(1) An Evaluation Committee shall evaluate a bid according to the compliance, technical and financial requirements stated in a tender document.
(2) A technical bid and a financial bid shall be submitted in a single envelope or package.
(3) A bidder who is successful in the compliance evaluation stage shall proceed to the technical evaluation stage, and a bidder who is successful at the technical evaluation stage shall proceed to the financial evaluation stage.
(4) A financial evaluation stage shall take into consideration any reservation or preference scheme.
(5) An Evaluation Committee shall prepare an evaluation report which encompasses the three stages referred to under subregulation (3) and submit the evaluation report to a procurement unit.
55. Evaluation of dual envelope or package bid
(1) A bidder shall submit to a procuring entity, a technical bid and a financial bid in separate envelopes or packages.
(2) An Evaluation Committee shall examine a bid for compliance and responsiveness.
(3) A bidder who is successful in a compliance evaluation stage shall proceed to a technical evaluation stage.
(4) An Evaluation Committee shall prepare a technical evaluation report and submit the technical evaluation report to a procurement unit.
(5) An Accounting Officer shall, after the approval of a technical evaluation report, authorise the opening of a financial bid.
(6) After the approval referred to under subregulation (5), a procuring entity shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish the outcome of a technical adjudication within three days of the outcome.
(7) An Accounting Officer shall sign and submit a letter to a successful bidder and a bidder who is has not been successful indicating the outcome of a tender and the reasons of the outcome.
(8) An Evaluation Committee shall evaluate a financial bid by strictly adhering to the financial evaluation criteria set out in a tender document.
(9) A financial evaluation stage shall take into consideration any reservation or preference scheme.
(10) An Evaluation Committee shall prepare a financial report and submit the financial report to a procurement unit.
(11) A procuring entity shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish the outcome of a tender adjudication within three days of the outcome.
(12) A procuring entity shall, after the publication of an award decision referred to under subregulation (11), allow a cooling-off period in accordance with section 104 of the Act.
(13) An Accounting Officer shall sign and submit a letter to a successful bidder and a bidder who has not been successful indicating the outcome of a tender.
(14) A procuring entity shall, where a bidder requests for de-brief, provide the bidder with de-brief in accordance with these Regulations.
(15) An Accounting Officer shall, where a contractor has not lodged a complaint during a cooling-off period, proceed to award the tender.
(16) An Accounting Officer shall, where a contractor has lodged a complaint during a cooling-off period, resolve the complaint within 14 days of the receipt of such complaint, before he or she proceeds with a procurement process in accordance with these Regulations.
(17) A procuring entity shall—
(a) upon receipt of a letter of acceptance from a bidder, place a contract with a successful bidder; and
(b) immediately return an unopened financial submission by a bidder whose bid failed to proceed to the financial evaluation, to the bidder.
(1) Except as otherwise provided in these Regulations, an amendment to a bid, including an amendment of a price of a bid, shall not be permitted after the closing date of the bid.
(2) Notwithstanding subregulation (1), an Evaluation Committee may correct an arithmetical error in a bid document where—
(a) there is a discrepancy between a unit price and the total price that is obtained by multiplying the unit price and the quantity, and such unit price shall prevail, and the total price shall be corrected accordingly;
(b) there is a discrepancy between an amount in words and an amount in figures, and the amount in words shall prevail; or
(c) applicable, a reservation or preference scheme is to be applied to a corrected price of a bid.
(3) Notwithstanding subregulation (1), a procuring entity may correct any minor error or oversight in a bid that is capable of being corrected without changing the substance of the bid.
(4) The procedure for the correction of an arithmetical error in a bid referred to under subregulation (2) shall be provided in a bidding document.
(5) Any arithmetic correction made to a bid shall, where necessary, be quantified, noted and taken into account in an evaluation of the bid.
(6) An Evaluation Committee shall, immediately after correcting a bid in terms of subregulation (2), inform a bidder of such correction, and where the bidder does not accept the correction, the Evaluation Committee shall disqualify the bid.
57. Ad hoc de-briefing committee
(1) An Accounting Officer shall appoint an ad hoc de-briefing committee for each specific procurement.
(2) An ad hoc de-briefing committee shall consist of a minimum number of three members who shall include—
(a) a member from an Evaluation Committee;
(b) a representative from a procurement oversight unit;
(c) a representative from a user Department; or
(d) an additional member, who may be a representative from a procurement unit.
58. Functions of ad hoc de-briefing committee
(1) An ad hoc de-briefing committee shall conduct a de-brief for a specific procurement of a procuring entity.
(2) After a procuring entity has informed a bidder of the outcome of a bid, the ad hoc de-briefing committee shall—
(a) meet with such bidder for the de-briefing; and
(b) at the meeting referred to in paragraph (a), inform such bidder that—
(i) only the bidder’s bid will be discussed,
(ii) such meeting is not a forum to debate the merits of a decision to award a tender,
(iii) such meeting shall not be used to raise any complaint, and
(iv) the bidder may lodge any complaint, in writing, with the Accounting Officer in accordance with these Regulations.
(3) An ad hod de-briefing committee shall take and record minutes of any meeting of the ad hoc de-briefing committee, which shall be signed by the attendants of the meeting, and be kept as part of a procurement record.
(4) The minutes of a meeting of an ad hoc de-briefing committee shall be availed to a bidder upon the bidder’s request.
59. Choice of method of evaluation
(1) An evaluation of a bid shall be conducted in accordance with any procedure relating to the evaluation of a bid provided under these Regulations and relevant to a particular procurement.
(2) A choice of an evaluation method under these Regulations shall be relevant to a particular procurement project and shall take into account the—
(a) complexity of a procurement project; and
(b) nature of procurement of works, services or supplies.
(3) A choice of an evaluation method shall be conducted in accordance with such procedure relating to a particular evaluation method.
(4) Where a procuring entity wishes to use an evaluation method other than the one provided under these Regulations, the procuring entity shall first obtain an approval of the Authority to use such method.
60. Evaluation by quality and cost based selection
(1) An Evaluation Committee shall conduct a quality and cost based selection evaluation method by—
(a) taking into account the quality and the cost of a bid in a process under which a technical bid is evaluated without access to a financial bid; and
(b) stating, in an invitation to tender, the relative weight to be given to the quality and the cost component of the evaluation, which shall depend on the nature of an assignment.
(2) A bid which is to be evaluated by a quality and cost based selection evaluation method shall be submitted using the dual envelope or package submission method.
(3) The procedure for conducting a quality and cost based selection evaluation of a technical bid shall be as follows—
(a) after the opening of a bid, the evaluation shall be conducted through—
(i) a preliminary examination to determine whether a bid is qualified and responsive to the terms of a bidding document, and
(ii) the elimination of a bid from further evaluation, which has been determined to be non-responsive and not qualified;
(b) by means of—
(i) evaluating a bid against a technical evaluation criteria,
(ii) marking, on a scale of 1 to 100, each criterion, and
(iii) weighing the mark attained by a technical bid and recording such mark as a technical score;
(c) a tender document shall divide the criteria into sub-criteria to assist in the assessment of a technical bid;
(d) a bid shall be compared to the minimum qualifying technical mark and a bid which does not reach the minimum shall be eliminated from further evaluation;
(e) to state, in a bidding document, the technical evaluation criteria, the weights and the minimum qualifying mark;
(f) an Evaluation Committee shall prepare a technical evaluation report of a technical bid received and the report shall—
(i) substantiate the results of an evaluation,
(ii) describe the strength and weakness of a bid,
(iii) indicate which bid is recommended to proceed to the cost evaluation, and
(iv) be approved by an Accounting Officer prior to the cost evaluation;
(g) a bidder who has secured the minimum qualifying mark shall be notified and be advised of the date and time set for the opening of a financial bid, in terms of the following—
(i) the opening of the financial bid shall not be sooner than five days following the notice date,
(ii) a financial bid shall be opened in public, and
(iii) the name of the bidder, the technical score and the price of the bid shall be read out at the opening of the financial bid;
(h) a cost evaluation of a bid shall be conducted by—
(i) reviewing a financial bid to correct any arithmetic error,
(ii) where applicable, the conversion of a bid to a single currency as stated in an invitation to tender,
(iii) evaluating a financial bid,
(iv) assessing the reasonableness and completeness of a price, and
(v) applying preferential treatment where applicable;
(i) a bid shall be rated by giving a financial score of—
(i) 100 to the bid with the lowest cost, and
(ii) an inversely score, proportional to the lowest bid cost, to other bids;
(j) a directly proportional cost or other methodology may be used, as an alternative, in allocating a mark for the cost:
Provided that such methodology is fully described in the invitation to tender;
(k) the total score shall be obtained by—
(i) weighing the technical score and cost score, and
(ii) adding the technical score and cost score together to obtain a combined score;
(l) the weight for the cost shall be between 10 and 20 points, and shall not be greater than 30 points out of a total of 100;
(m) the weight for the cost shall be chosen by considering the—
(i) complexity of the assignment, and
(ii) relative importance of the technical aspect of a bid;
(n) the method proposed for the weighting of cost and technical score shall be stated clearly in an invitation to tender;
(o) a bidder obtaining the highest total score shall be recommended for an award of a contract; and
(p) an Evaluation Committee shall prepare a financial evaluation report of a financial bid evaluated and indicate which bidder is recommended for an award of a tender.
61. Evaluation by quality based selection
(1) A quality based selection evaluation method shall be a method used for the evaluation of a technical bid conducted against a set criteria on a merit point system to determine the best technical bid without access to a financial bid and shall include an evaluation of the—
(a) quality of the bid which shall be the primary factor to be considered; and
(b) cost of the bid which shall apply only to the best technical bid.
(2) The procedure for quality based selection evaluation of a technical bid shall be conducted in the following manner—
(a) after the opening of a bid, an Evaluation Committee shall conduct a preliminary examination to determine—
(i) whether a bidder has qualified on the basis of having passed a selection for the bid, and
(ii) the responsiveness of a bid to the terms of bidding document;
(b) a bid that fails to qualify or that is found to be non-responsive to the terms of a bidding document shall be eliminated from further evaluation;
(c) a technical evaluation of a bid shall be conducted—
(i) to evaluate each technical bid against the technical evaluation criteria, and
(ii) by comparing a bid to the minimum qualifying technical mark and a bid which does not reach the minimum to be eliminated from further evaluation;
(d) an Evaluation Committee shall prepare a technical evaluation report of a technical bid received, which shall—
(i) substantiate the result of an evaluation,
(ii) describe the strength and weakness of the bid,
(iii) indicate which bid is recommended to proceed to the cost evaluation, and
(iv) approved by an Accounting Officer prior to a cost evaluation;
(e) a cost evaluation of a bid shall be conducted for opening a financial bid of a bidder who submitted the best evaluated technical bid, where a technical bid and a financial bid were submitted in a dual envelope or package submission method;
(f) a financial bid shall be negotiated by a procuring entity in accordance with the provisions of these Regulations; and
(g) an Evaluation Committee shall prepare a financial report and indicate which bidder is recommended for an award of a tender.
(3) A tender shall be awarded to a bidder with the highest technical score and a reasonable price.
(4) For purposes of this regulation, “quality based selection evaluation” means an evaluation method that uses quality as the primary factor in a process under which a technical bid is evaluated without accessing a financial bid, and a financial bid shall be conducted only for the best technical bid.
62. Evaluation by fixed budget selection
(1) A procuring entity shall, when using a fixed budget selection evaluation method, indicate its available budget, and the evaluation shall be conducted in the following manner, a bidder—
(a) shall be required to provide, within a stated budget, the best possible technical bid and financial bid, in separate envelopes or packages; and
(b) with the evaluated technical bid of the highest quality, which is within a stated budget, shall be recommended to be awarded a contract.
(2) A schedule of requirements or terms of reference which shall be prepared by a procuring entity shall contain the necessary detail to portray the sufficiency of the budget for the performance, by a bidder, of the expected task as shall be contained in a contract.
(3) The procedure for a fixed budget selection evaluation of a technical bid shall be conducted in the following manner—
(a) after the opening of a technical bid, an Evaluation Committee shall conduct a preliminary examination to determine—
(i) whether a bidder has qualified on the basis of having passed a selection for the bid, and
(ii) the responsiveness of a bid to the terms of bidding document;
(b) a bid that fails to qualify or that is found to be non-responsive to the terms of a tender document shall be eliminated from further evaluation;
(c) an Evaluation Committee shall prepare a technical evaluation report of a technical bid received, which shall—
(i) substantiate the result of an evaluation,
(ii) describe the strength and weakness of the bid,
(iii) indicate which bid is recommended to proceed to the cost evaluation, and
(iv) approved by an Accounting Officer prior to the commencement of a cost evaluation;
(d) a procuring entity shall advise a bidder that has passed the technical stage of evaluation of the date and time set for the opening of a financial bid;
(e) the opening of a financial bid shall not be sooner than five days following the notice date;
(f) a financial bid shall be opened in public and at the opening of the bid, a procuring entity shall read out the—
(i) name of a bidder,
(ii) technical score, and
(iii) price of the bid;
(g) an Evaluation Committee shall conduct a cost evaluation and shall eliminate a bid that exceeds the budget;
(h) subject to any negotiation that may be held between a procuring entity and a bidder, the bidder who submits the highest ranked technical bid, amongst submitted bids that are within the budget, shall be recommended for an award of a tender; and
(i) any negotiation shall be made in accordance with the provisions of these Regulations.
(4) For purposes of this regulation “fixed budget selection evaluation” means an evaluation method that recommends a bidder with the best technical bid which is within a given budget.
63. Evaluation by least cost selection works and supplies
(1) A procuring entity shall use the least cost selection works and supplies method to identify the lowest price of a bid which meets a technical and commercial requirement of a procuring entity.
(2) Unless otherwise expressly stated in a tender document, a bid evaluated in terms of this regulation shall require the use of a single envelope or package submission method.
(3) An Evaluation Committee shall make a recommendation for an award of a tender to a bid that is—
(a) qualified;
(b) technically compliant;
(c) responsive to the terms of a bidding document; and
(d) has the lowest price.
(4) The procedure for the least cost selection works and supplies evaluation of a bid shall be conducted in the following manner—
(a) an Evaluation Committee shall carry out a preliminary examination of a bid to determine—
(i) whether a bidder has qualified on the basis of having passed the eligibility criteria for the bid, and
(ii) the responsiveness of the bid to the requirements of a tender document;
(b) an Evaluation Committee shall eliminate a bid that fails to qualify or that is found to be non-responsive to the requirements of a tender document from further evaluation;
(c) an Evaluation Committee shall conduct a technical evaluation to determine any technical compliance with a specification or scope of works in a tender document, only for a bid that, in terms of a preliminary examination, has qualified and has been responsive;
(d) an Evaluation Committee shall eliminate a bid that is not in compliance with a technical requirement from further evaluation;
(e) an Evaluation Committee shall carry out a cost evaluation on a bid that is compliant with a technical requirement to—
(i) correct an arithmetical error,
(ii) convert a price of a bid to Botswana Pula currency, where applicable,
(iii) assess whether there is any omission of, or deviation from, the technical requirement,
(iv) assess whether a price of a bid is reasonable, and
(v) apply preferential treatment where applicable; and
(f) an Evaluation Committee shall prepare a detailed evaluation report of a bid received, which shall include—
(i) the result of an evaluation,
(ii) the reason for the rejection of any bid, and
(iii) a recommendation for an award of a tender.
(5) A tender shall be awarded to a technically compliant bidder with the lowest reasonable price.
64. Evaluation by least cost selection services
(1) An Evaluation Committee shall use the least cost selection services method to identify the lowest priced bid which meets any technical and commercial service requirement of a procuring entity.
(2) The least cost selection services method shall require the use of a single envelope or package.
(3) The procedure for the least cost selection services evaluation of a technical bid shall be conducted as follows—
(a) an Evaluation Committee shall conduct a preliminary examination to determine—
(i) whether a bidder has qualified on the basis of having passed the selection for the bid, and
(ii) the responsiveness of the bid to the requirements of a bidding document;
(b) an Evaluation Committee shall eliminate a bid that fails to qualify or that is found to be non-responsive to the requirements of a bidding document from further evaluation;
(c) an Evaluation Committee shall conduct a technical evaluation by evaluating a technical bid against the technical evaluation criteria;
(d) an Evaluation Committee shall eliminate a bidder who does not secure the minimum qualifying score from further evaluation;
(e) an Evaluation Committee shall, in writing, inform and advise a bidder who has secured a minimum qualifying score, of the date and time for the opening of a financial bid;
(f) a financial bid shall be opened in public and at the opening of the bid, a procuring entity shall publicly read out the—
(i) name of a bidder,
(ii) technical score, and
(iii) price of the bid;
(g) an Evaluation Committee shall carry out a cost evaluation by—
(i) correcting any arithmetic error,
(ii) converting a bid to a single currency as may be stated in a tender document, and
(iii) assessing whether the price of a bid is reasonable and complete;
(h) subject to any negotiation that may be held between a procuring entity and a bidder, the bidder who submits the lowest priced bid, amongst submitted bids that meet the qualifying score or minimum requirements, shall be recommended for an award of a tender; and
(i) an Evaluation Committee shall prepare a detailed evaluation report which shall be approved by an Accounting Officer.
65. Evaluation by qualification selection method
(1) A procuring entity shall use a qualification selection evaluation method for a simple and small assignment as may be determined by a procuring entity, where the need for the preparation and evaluation of a competitive bid is not justified.
(2) A procuring entity shall, for the purpose of soliciting a bidder under a qualification selection method—
(a) follow a two stage process;
(b) prepare the terms of reference;
(c) request a bidder to supply an expression of interest and information concerning the bidder’s experience and competence relevant to an assignment;
(d) prepare a short list of bidders; and
(e) select a bid with the most appropriate qualification and reference.
(3) A procuring entity shall request a selected bidder to submit a combined technical and financial bid and shall invite the selected bidder to negotiate a contract.
(4) The procedure for a qualification selection evaluation method shall be conducted as follows—
(a) a procuring entity shall—
(i) evaluate the expression of interest together with any supporting information, and
(ii) select a bidder with the most appropriate qualification and reference to whom a tender is to be awarded; and
(b) an Evaluation Committee shall—
(i) prepare a technical evaluation report of an expression of interest received from a bidder, and
(ii) submit a technical evaluation report referred to under subparagraph (i) to an Accounting Officer for approval;
(c) a procuring entity shall not proceed to stage two of an evaluation provided under paragraph (b) before obtaining the approval of an Accounting Officer;
(d) a procuring entity shall request a selected bidder to negotiate the terms of a contract for the provision of the services; and
(e) any negotiation shall be carried out in accordance with the provisions of these Regulations.
(5) For purposes of this regulation, “qualification selection” means a method of evaluation used in the selection of a bidder based exclusively on the quality of a proposal without reference to a price.
(1) A procurement unit shall not cancel a tender without the prior approval of an Accounting Officer.
(2) A procurement unit shall submit a written request to an Accounting Officer to authorise the initiation of a process to cancel a procurement process, and the request shall state—
(a) the reason for a cancellation by the procurement unit to cancel a tender;
(b) the status of the procurement process; and
(c) whether a new procurement process is recommended and if so, provide the justification for the recommendation.
(3) Where an Accounting Officer has approved the cancellation of a tender, a procurement unit shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish such cancellation.
(4) A procurement unit shall avoid a cancellation of a tender as far as may be practicable, and shall consider to cancel a tender where—
(a) a procurement need has ceased to exist or has changed significantly;
(b) due to unforeseen circumstance, the funding of a tender is insufficient for a procurement;
(c) there is a significant or material change to either the scope or a requirement of the tender, including the bidding conditions, the conditions of a contract or any other detail;
(d) all bids received are not responsive;
(e) there is evidence of collusion amongst bidders;
(f) it is in the public interest to cancel the tender;
(g) there is evidence of a corrupt practice by any person involved in a procurement;
(h) there has been a violation of the conditions of the tender during a tendering period;
(i) there has been a contravention of the provisions of the Act; or
(j) there are any other circumstances compelling the procurement unit to cancel the tender.
(5) A procuring entity shall, where a tender is cancelled prior to the opening of a bid, return the bid to a bidder, unopened.
(6) Where a cancellation of a tender is due to a procuring entity’s omission, the procuring entity shall refund a bidder the cost of buying a bidding document and, where applicable, allow the bidder to participate in a re-tender at no cost.
PART VIII
Procedure for Negotiation of Contracts and Award of Tenders (regs 67-79)
(1) A procuring entity shall, before an award of a tender, immediately invite a preference bidder for negotiation.
(2) A procuring entity shall, in an invitation referred to under subregulation (1), inform a bidder of any information in the proposal of the bidder, which requires further negotiation.
(3) The negotiation referred to under subregulation (2) may include a discussion on—
(a) the comments made by a bidder on the scope of services;
(b) the manpower or human capital engaged by a bidder;
(c) a work programme proposed by a procurement agent or a procurement service provider; and
(d) any inherent risk relating to a contract.
(4) The discussions referred to under subregulation (3) shall not substantially alter the original terms of reference or the requirements of a contract:
Provided that the final negotiation terms will be incorporated in the contract reference and the agreed methodology shall be incorporated in a “Description of Services” which shall form part of the contract.
(5) A key employee proposed for replacement of another employee shall have qualifications and experience equal to or better than the key employee initially proposed.
(6) Any financial discussion shall be limited to a negotiation by a contractor withholding tax liability or any other issues relating to tax that may not be clear in a bid.
(7) A procuring entity shall, where a discussion in terms of this regulation fails to result in an acceptable contract, terminate or cancel the procurement process or negotiation.
(8) A procuring entity shall inform a contractor of the reasons for the termination of a procurement process or negotiation.
(1) A bidding document shall state the procedure to be followed for an award of a tender.
(2) An issuance of an acceptance letter to a successful bidder shall—
(a) constitute an act of the placement of a contract; and
(b) be after the observance of a cooling-off period and the resolution of a complaint, if any.
(3) A procuring entity shall, within 21 days, sign a contract with a bidder who has been awarded a tender after the lapse of a cooling-off period, where there is no complaint lodged with an Accounting Officer in terms of section 104 of the Act.
(4) A procuring entity shall, where a successful bidder fails to sign a contract, or fails to provide any required security for the performance of the contract, with the approval of an Accounting Officer, withdraw an award decision in accordance with these Regulations.
(5) A procuring entity shall not issue a communication in any form that would bind the procuring entity unless an Accounting Officer has approved the issuance of the communication.
(6) After the approval referred to under subregulation (5), a procuring entity shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish an award decision of a tender within three days of the outcome.
(7) A procuring entity shall, after the publication of an award decision referred to under subregulation (11), allow a cooling-off period in accordance with section 104 of the Act.
(8) A procuring entity shall, where a debriefing has been requested by a bidder, provide the debriefing to the bidder in accordance with these Regulations.
(9) An Accounting Officer shall sign and submit a letter to a successful bidder and a bidder who is has not been successful indicating the outcome of a tender and the reasons of the outcome.
(10) An Accounting Officer shall, where a contractor has not lodged a complaint during a cooling-off period, proceed to award the tender.
(11) An Accounting Officer shall, where a contractor has lodged a complaint during a cooling-off period, resolve the complaint within 14 days of the receipt of such complaint, before he or she proceeds with a procurement process in accordance with these Regulations.
(12) A procuring entity shall, upon receipt of a letter of acceptance from a bidder, place a contract with a successful bidder.
69. Types of contracts and pricing approaches
A procuring entity may use any type of a contract and any approach of pricing provided for in these Regulations, or any other type of a contract authorised by the Authority.
(1) A procuring entity may use a lump sum contract for works, services or supplies where the content, duration and output of a contract are well defined.
(2) A lump sum contract shall consist of a fixed total price for the performance of the contract.
(3) A procuring entity shall, subject to the conditions of a contract, pay a contractor a fixed lump sum price of the contract irrespective of the actual quantity, time or work required for the performance of such contract.
(4) Any payment under a lump sum contract shall be dependent on the specified output, deliverable or event, which may include but not limited to—
(a) the delivery of supplies in accordance with the appropriate delivery documentation specified in the contract;
(b) the installation or commissioning of supplies;
(c) the milestones in any works or services;
(d) the provisional or final acceptance of works, services or supplies;
(e) a report or recommendation;
(f) the completion of any drawing, bill of quantity, activity schedule or solicitation documents;
(g) any software programme; or
(h) any workshop or training programme.
71. Time-based or measured works contracts
(1) A procuring entity may use a—
(a) time-based contract for services, where the scope and duration of a contract is difficult to define; or
(b) measured works contract for works, which are not well defined, likely to change in quantity or specification, or where difficult or unforeseen site condition is likely to occur.
(2) Any payment under a time-based contract or a measured works contract shall be for the actual quantity delivered or performed, using a fixed unit price for different items specified in a contract.
(3) A payment for a contract of services shall be based on—
(a) the agreed fee rate for a specified period of time, for either a nominated personnel or a certain type or grade of personnel; and
(b) any reimbursable item such as transportation and subsistence allowance, using either the actual expense or any agreed unit price.
(4) A payment for a contract of works shall be based on any agreed rate for various items of works, as may be priced by a contractor in the bill of quantity.
(5) A time-based contract and a measured works contract shall include a maximum total contract amount, which may include a contingency amount for any unforeseen work, and a procuring entity shall not exceed the maximum amount without the authority of an Accounting Officer.
(6) A procuring entity shall monitor a time-based contract and measured works contract closely to ensure that progress of the contract, and that a payment claimed by a supplier is appropriate, and in accordance with such contract.
(1) A procuring entity may use a rate contract for works, services or supplies—
(a) where an item is required by the procuring entity on a “call off” basis, and the quantity and time of the requirement cannot be defined in advance; or
(b) to reduce a procurement cost or lead time for any item which is continuously required by the procuring entity over a period of time, by having the item available on a “call off” basis.
(2) A payment under a rate contract shall be for the actual quantity delivered or performed during the period of time covered by the contract, and using a fixed unit price specified in such contract.
(3) A rate contract may include an estimated quantity or value of a contract but shall not commit a procuring entity to purchase the estimated quantity or value of the contract.
(4) A rate contract shall specify an arrangement for obtaining any specific requirement during the period of the contract on a “call off” basis or by using a purchase order.
(1) A procuring entity may use a framework contract for works, services or supplies which shall operate for an agreed period—
(a) where an item is required by the procuring entity on a “call off” basis, and the quantity and time of the requirement cannot be defined in advance; or
(b) to reduce a procurement cost or lead time for any item which is continuously required by the procuring entity over a period of time, by having the item available on a “call off” basis.
(2) A payment under a framework contract shall be for the actual quantity delivered or performed during the period of time covered by the contract, using a fixed unit price specified in such contract.
(3) A framework contract may commit to the purchase of a minimum quantity or value of a contract, or to the purchase of any similar requirement from a supplier, where necessary or preferable, to obtain a competitive price, and may specify a maximum quantity or value of the contract to be purchased under the contract.
(4) A framework contract shall specify an arrangement to obtain a specific requirement during a period of the contract, using a purchase order as may be required by a procuring entity.
74. Percentage based contracts
(1) A procuring entity may use a percentage based contract on works and services where a fee is paid directly to an estimated or actual cost such as the value of a contract.
(2) A percentage based contract shall define a total cost from which the percentage is to be calculated and paid.
(3) A percentage contract may include—
(a) a fixed target cost;
(b) any minimum or maximum fee;
(c) a sliding scale of fees; or
(d) a hybrid encompassing paragraph (a), (b) or (c).
75. Cost reimbursable and target price contracts
(1) A procuring entity may use a cost reimbursable or target price contract for any—
(a) emergency works or services where there is insufficient time to calculate any cost involved; or
(b) high risk works where it is economical for a procuring entity to take the risk of the variation of a price than to pay a contractor to accept the risk, or where a contractor does not accept such risk.
(2) Any payment for a cost reimbursable contract and a target contract shall be for—
(a) the actual cost of the works or services, as may be indicated in a receipt and any other necessary document; and
(b) a fee or profit as may be specified in a contract.
76. Retainer and success fee contracts
(1) A procuring entity may use a retainer contract or a success fee contract where a procurement agent or a procurement service provider is required to make preparations in the sale or merger of a company or statutory body, particularly in the privatisation of a public body.
(2) The remuneration of a procurement agent or a procurement service provider may include a retainer fee and a success fee, the success being expressed as a percentage of a sale price of the company or the statutory body.
77. Indefinite delivery contract or price agreement
(1) An indefinite delivery contract—
(a) shall be used where a procuring entity requires an “on call” specialised services to provide advice on a particular activity, the extent and time of which cannot be defined in advance; or
(b) may used to retain, an advisor for the implementation of any complex project, an expert adjudicator in a dispute resolution panel, an institutional reform, a procurement advice, a technical troubleshooting, or any other, for a period of 12 months or more.
(2) A procuring entity and an advisor, expert or institution, referred to under subregulation (1) shall agree on a unit rate to be paid to the advisor, expert of institution and such payment shall be made on the basis of the time used by such advisor, expert or institution.
(1) A procuring entity shall use a contract document included in the applicable standard bidding document issued by the Authority.
(2) A contract document referred to in subregulation (1) shall state the type of a contract and the key terms of the contract which shall apply to a procurement.
(3) A contract document shall include the terms and conditions of a contract, and in particular—
(a) the general conditions of a contract, or a statement of the general conditions which shall be applicable to the contract;
(b) the special conditions of a contract;
(c) a statement that the special conditions of a contract shall prevail over the general conditions of the contract and the order of priority of any other contract documents;
(d) a description of the works, services or supplies purchased by a contract, including any technical requirement, quantity and delivery or completion schedule, based on a statement of any requirement included in the bidding document and a bid of a supplier, subject to any modification that may be agreed upon by a procuring entity and the supplier;
(e) the total contract price, and where applicable, any condition applicable to the variation, adjustment, modification or recalculation of the actual price;
(f) the condition for payment, including a payment period, schedule, currency and any document required;
(g) any requirement for securities;
(h) the procedure agreed for the resolution or settlement of any dispute;
(i) any other key contract terms as may be required by a bidding document, including a warranty, insurance, subcontract, an inspection and acceptance, completion of a contract, delays in the performance or nonperformance, force majeure and, variation, modification and termination of the contract; and
(j) any information relating to a policy of Government on fraud and corruption, including the suspension of a bidder.
(4) The pricing of contract shall be in accordance with a particular contract chosen to be used by a procuring entity under these Regulations.
79. Change in circumstances of contractors
(1) In the event that there is a change in the circumstances of a contractor, which materially affect the capacity of the contractor to successfully deliver the required and scheduled output, such contractor shall inform a procuring entity within the period specified in a contract, or within five days where a period has not been stated in a contract.
(2) A procuring entity shall, where a contractor requests a procuring entity to allow for the change referred to in subregulation (1), in consultation with a procurement unit submit the request, together with the recommendation of the procurement unit to an Accounting Officer for a decision.
(3) For purposes of this regulation, “change in the circumstances of a contractor” includes a material change in the capacity of the contractor to execute a contract in terms of finance, employees or personnel, equipment or any other change that was not originally agreed between a procuring entity and such contractor.
(4) A procuring entity shall consider an immediate termination of a contract upon the occurrence of one or more of the following events, where—
(a) the business of a contractor ceases to operate;
(b) a resolution is passed for the liquidation of the business of a contractor, or the business of the contractor is placed under a provisional or final liquidation in terms of the Companies Act (Cap. 42:01);
(c) a statutory manager is appointed to manage the affairs of the business of a contractor under judicial management;
(d) a contractor is declared insolvent in terms of the Insolvency Act (Cap. 42:02);
(e) a contractor undergoes a change of ownership, merger or acquisition;
(f) a contractor loses key personnel or a key employee and fails to replace the personnel or employee with the equivalent or better personnel or employee within a specified period; or
(g) any other circumstance which may hinder the performance of a contractor to deliver according to the contract.
PART IX
Conditions for Deviation from Applicable Procurement Method, Procurement Process, etc. (regs 80-83)
(1) A procuring entity shall, in Form J set out in Schedule 1 apply to the Authority to deviate from the use of a procurement method, procurement process, rule or a bidding document.
(2) An application for a deviation made in terms of subregulation (1) shall include—
(a) a statement of a procurement method, procurement process, rule or a bidding document to be used by a procuring entity;
(b) the justification for deviation from a procurement method, procurement process, rule or a bidding document, including a justification of any exceptional requirement, market condition or international standard or practice which regulate a procurement requirement;
(c) a justification of any proposed alternative procurement method, procurement process, rule or a bidding document, including a summary of how the proposed alternative differs from a standard procurement method, procurement process, rule or a bidding document;
(d) a statement of whether the deviation is required for a single procurement requirement or for a number of procurement requirements of the same and the period of time applicable to such deviation; and
(e) any other relevant information as may be required by the Authority.
(3) The Authority shall consider an application in terms of this regulation and make a decision within 10 days from the receipt of the application.
(4) The Authority may approve an application made in terms of this regulation, as submitted or with any modification or condition, or reject an application and state the reasons for the rejection.
(5) An approval by the Authority of an application made under this regulation shall state whether the approval is for a single procurement requirement or for a number of procurement requirements of the same class.
(6) A procuring entity may submit an application for the renewal of a deviation from a procurement method, procurement process, rule or a bidding document in accordance with subregulations (1) and (2).
81. Monitoring and profile analysis of deviations
(1) The Authority shall keep and maintain a register of any deviation approved in terms of these Regulations.
(2) The register referred to in subregulation (1) shall include any information necessary for the Authority to—
(a) monitor compliance with any condition of a deviation;
(b) assess the effectiveness of any deviation; and
(c) analyse any trend in a profile of a deviation.
(3) The Authority may, where a procuring entity fails to comply with any condition of a deviation, require an Accounting Officer to take steps to ensure compliance, or, in writing, revoke the deviation and provide a reason for such revocation.
(4) The Authority shall analyse any trend in a profile in terms of subregulation (2)(c) to determine whether—
(a) any changes are required to any tender document;
(b) additional circular which provide further guidance on a particular matter should be issued; or
(c) any additional tender document is required to meet a particular need of a procuring entity.
82. Alternative procurement process relating to external obligations
(1) A procuring entity shall, where the procuring entity is required by an external obligation or an international agreement to use an alternative procurement process, in Form K set out in Schedule 1 apply to the Authority for an approval to use the alternative procurement process.
(2) An application referred to in subregulation (1) shall be accompanied by a justification for the application and a supporting information with a copy of an external obligation or international agreement.
(3) The Authority shall consider an application under this regulation and make a decision within 10 days of the application.
83. Retroactive procurement activities
(1) A user Department shall, in Form L set out in Schedule 1, request an Accounting Officer to approve a retroactive procurement process, including a procurement within a micro procurement threshold.
(2) An Accounting Officer shall assess the nature of a request to approve a retroactive procurement in order to—
(a) determine whether the procurement was due to an urgent requirement or an emergency arising from any special circumstance provided under these Regulations; and
(b) ascertain whether a procuring entity has received the benefit of the works, services or supplies prior to approval.
(3) A procurement unit shall analyse a request from a user Department made in terms of this regulation and ascertain whether the request is reasonable before the procurement unit submits such request to an Accounting Officer.
(4) An Accounting Officer shall, before approving a request made by a user Department in terms of this regulation, consider the request on its own merit.
(5) An Accounting Officer shall consider a request made in terms of this regulation on any circumstance based on urgency or emergency where there is an—
(a) urgent matter involving public safety or security to protect life or the environment; or
(b) incident of a health hazard.
(6) A procurement unit shall submit a request made in terms of this regulation to an Accounting Officer within seven days from the date of receipt of the request.
(7) A procurement unit shall—
(a) confirm that the works, services or supplies procured were not in stock or under any existing framework contract or similar arrangement;
(b) within seven days of the occurrence of a procurement process, prepare a brief report for submission to an Accounting Officer, which shall include any detailed information of a requirement; and
(c) submit any invoice and any other related document.
(8) An Accounting Officer shall report any retroactive procurement to the Authority within 14 days of authorising the procurement.
PART X
Reservation and Preferential Treatment (regs 84-97)
84. Requirements for reservation and preference schemes
(1) An Accounting Officer shall, where there is an international agreement or a reservation and preference scheme, which favours a citizen or a citizen contractor, or local contractor, bring the international agreement or reservation and preference scheme to the attention of the citizen or a citizen contractor, and cause advantage to be taken of such international agreement or reservation and preference scheme.
(2) An Accounting Officer shall, in ensuring that the agreement or scheme referred to under subregulation (1) is brought to the attention of a citizen or citizen contractor, or local contractor, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish information relating to such agreement or scheme, and include the same information in a bidding document.
(3) A procuring entity shall, where applicable, in accordance with any existing reservation or preference scheme, limit participation in a procurement process to a category of contractors in order to—
(a) ensure the development of a citizen or citizen contractor, or local contractor; or
(b) comply with any agreement which requires the subcontracting of a contract to a citizen or citizen contractor, or local contractor.
(4) Where a procuring entity limits participation in a procurement process in terms of this regulation, the procuring entity shall provide—
(a) a statement to that effect, in either a tender document or pre-qualification notice, or both; and
(b) information on how either the reservation or preference scheme, or both, shall be applied.
(5) A procuring entity shall allow certain price preference which does not affect a price of a tender, but which is taken into account when calculating the comparative price as stipulated in a tender document.
(6) A procuring entity shall take into consideration, existing reservation and preference scheme as may be issued by the Minister from time to time.
(7) The issuance of a tender document to which a reservation or preference scheme is applicable, without the inclusion of the reservation or preference scheme shall not be valid.
(1) An Accounting Officer shall ensure that a tender document of a procuring entity include a mandatory requirement as a preliminary evaluation criteria specifying that a successful bidder shall—
(a) transfer a skill on technology or any other skill to a citizen or citizen contractor, or local contractor, through the training, mentoring and participation of the citizen or citizen contractor, or local contractor; and
(b) reserve an employment opportunity in works, consultancy services and non-consultancy services including a professional at a management level in accordance with the guidelines as may be issued by the Authority.
(2) A procuring entity shall, in addition to the mandatory requirement referred to in subregulation (1), ensure that a tender document includes an additional mandatory requirement that the bidding document shall provide for a local content plan to transfer skills under this regulation.
(3) A local content plan referred to in subregulation (2) shall include—
(a) a position reserved for an employment of a citizen or targeted citizen;
(b) capacity building and competence development programme for a citizen or targeted citizen;
(c) a time frame within which to provide an employment opportunity;
(d) a demonstrable effort for accelerated capacity building of a citizen or targeted citizen;
(e) a succession plan and management; and
(f) a plan demonstrating a linkage with any local industry, which ensures that an input is, sourced from locally manufactured article, material and supplies, partially mined or produced in Botswana, or where applicable, have been assembled in Botswana.
(4) An Accounting Officer shall, in the case of an international open bidding, and where competition does not meet the requirements of this regulation, cause a report to be prepared detailing proof of the inability to meet such requirements and measures to be taken to ensure compliance, and submit the report to the Authority to issue a waiver.
(1) Where a primary contractor has entered into a contractual arrangement with a citizen subcontractor, in terms of section 81 of the Act, a margin of preference in an evaluated price of a tender shall be applied in terms of section 73 of the Act.
(2) A citizen subcontractor referred to in subregulation (1) shall demonstrate the—
(a) technical expertise;
(b) capability; or
(c) competence to perform or execute the contract.
87. Timely payment for performed contracts
A procuring entity shall, after the certification of works, performed contract services or supplies, pay immediately or within the period provided in the contract.
(1) A reservation scheme shall have as its objective, the development of a business owned by a citizen or citizen contractor, or local contractor, by reserving procurement for the citizen or citizen contractor, or local contractor.
(2) The application of a reservation scheme and the eligibility of a contractor who qualifies for the reservation scheme shall be stated in a tender document and a pre-qualification notice.
(3) The Authority shall, in consultation with the Economic Empowerment Office and a procuring entity, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish an estimated cost for the procurement of works, services or supplies to be reserved for a citizen or citizen contractor.
(4) An Accounting Officer may prepare a report detailing proof that a procuring entity is unable to purchase works, services or supplies manufactured locally, and submit the report to the Authority.
(1) A preference scheme shall have as its objective, the development of a business owned by a citizen or citizen contractor, or local contractor, by giving the business a competitive advantage in deducting a specified margin from an evaluated price of a bidder who is eligible for the preference scheme during an evaluation of a financial bid.
(2) A preference scheme for a bid offering goods manufactured, mined, extracted or grown in Botswana shall have as its objective, the development of the manufacturing industry by giving the bid a competitive advantage in deducting a specified margin to an evaluated price of a bid which is eligible for the preference scheme during an evaluation of a financial bid.
(3) Any instrument, document or bidding package relating to a preference scheme shall state—
(a) eligibility for the margin of preference in terms of ownership, location of a bidder or production facilities, origin of labour, raw material or component, extent of subcontracting or association with a citizen, or any other relevant factor;
(b) the document required as proof of eligibility for the margin of preference; and
(c) the percentage of the margin of preference and the manner in which it shall be applied during an evaluation.
(4) The information referred to in subregulation (3) shall be provided for in a tender document.
(5) A percentage for a preference to be applied under subregulations (1) and (2)—
(a) shall be set by the Minister in consultation with the Economic Empowerment Office established under the Economic Inclusion Act and a procuring entity; and
(b) may be reviewed from time to time.
90. Promotion and support of innovative products
(1) A procuring entity shall, in accordance with section 76 (2) (f) of the Act, promote innovation, local technology and the commercialisation of a procurement process through the procurement of any innovative product that is in the public interest—
(a) where there is proof of a concept, relating to, and the supply of, the innovative product; and
(b) to develop the procurement support system for the innovative product.
(2) The Authority shall provide for a guideline on a method to be used to promote the procurement of an innovative product under this regulation.
(3) The Authority may, where an innovative product designated as such under subregulation (2) fails to continue to meet any standard set by an Accounting Officer for such designation, revoke the designation.
91. Single preference for bidders
(1) Subject to section 72 of the Act, a citizen or citizen contractor shall be given one reservation or preference scheme at a time for a procurement process.
(2) An evaluation of a bid relating to a reservation and preference scheme shall use the highest benefit that a bidder may be given to avoid benefiting more than once.
(1) A procuring entity may unbundle a category of works, services or supplies in a practicable quantity, in order to ensure the maximum participation of a citizen or citizen contractor, or local contractor.
(2) A procuring entity may, when unbundling a tender in accordance with subregulation (1), lot works, services or supplies in a quantity that is affordable to a targeted citizen participating in a procurement process, and such lot shall not be interdependent.
93. Security for tender and performance bond
(1) A procuring entity may require security for a tender, as may be applicable.
(2) A procuring entity shall not require security from a 100 per cent citizen owned micro, small and medium enterprise participating in a procurement process with reservation scheme, unless otherwise determined by the Minister.
94. Award of tenders based on rota system
(1) A procuring entity may use a rota system for a low value standardised and provision of works, services and supplies.
(2) A procuring entity may use a rota system for the procurement of works, services and supplies in accordance with the guidelines issued by the Authority.
(3) A procuring entity shall use a database kept and maintained by a competent authority.
(4) A procuring entity shall award a low value standardised and common supply of works, services or supplies sequentially, based on a list such that each bidder under this regulation is afforded the opportunity to be awarded a tender.
(5) A procuring entity shall ensure that a bidder selected for works, services or supplies shall not have the same shareholding, ownership, membership or directors, as a previously awarded bidder.
(6) For purposes of this regulation, “rota system” means a system of awarding tenders on a rotational basis following a sequential list of prequalified bidders one after the other and no awarded bidder is considered until the list is completed.
(1) The application of a reservation and preference scheme shall be monitored by the Authority in accordance with the provisions Act.
(2) The Authority shall request a procurement entity to submit a report on the implementation of a reservation or preference scheme.
(1) A requirement relating to a beneficial owner shall be in Form M set out in Schedule, and shall be included in a tender document.
(2) A procuring entity shall verify the information relating to a requirement referred to under subregulation (1) with the relevant competent authority.
(3) Where there is a change relating to a beneficial owner, a procuring entity shall be informed of the change within two days from the date such change occurred, in order to ensure compliance with the conditions of an award of a tender.
(4) During a tender process, a change relating to a beneficial owner shall not have taken place six months before the floating of a tender, and not within 12 months after the commencement of the contract, except by operation of law.
(5) A beneficial owner shall not submit more than one bid in a tender.
97. Primary contractors and subcontracting
(1) Where a procuring entity deems it feasible to allow for subcontracting, the procuring entity shall do so in order to develop skills and the contracting capacity of a 100 per cent citizen owned micro, small and medium enterprise.
(2) Where there is subcontracting, a primary contractor shall be required to subcontract a percentage of the total value of works, services or supplies to a citizen or citizen contractor, or local contractor.
(3) Where a procuring entity deems it feasible to subcontract in terms of subregulation (1), the procuring entity shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish a tender with a specific condition that a successful bidder shall subcontract a minimum of the threshold to be determined by the Minister.
(4) A subcontracting under this regulation shall be made in one or more of the following methods—
(a) domestic subcontracting, where a bidder selects a subcontractor to engage in the contract;
(b) nominated subcontracting, where a procuring entity selects a subcontractor through a competitive process and instructs a bidder to engage the selected subcontractor; or
(c) selected subcontracting, where a procuring entity, in consultation with a primary contractor, selects a subcontractor in terms of requirements of a contract.
PART XI
Procedure, Rules and Thresholds for Management, Amendment or Variation of Contracts (regs 98-121)
98. Contract management and responsibilities
(1) An Accounting Officer shall ensure effective contract management within a procuring entity through a procurement unit, and shall be responsible for monitoring and coordination of contract management in order to ensure—
(a) that there is progress and timely completion of works, services and supplies in accordance with the terms of the contract;
(b) the management of any deviation of a contract by a contractor, including the implementation of any amendment or variation of a contract under these Regulations;
(c) that a contractual obligation is discharged in accordance with the contract;
(d) a monthly submission, review and analysis of the implementation of a contract progress report, including any other related report, and quarterly performance review report, from a project team; and
(e) the submission of a report referred to in paragraph (d) to the Accounting Officer.
(2) The report referred to in subregulation (1)(d) shall be in a manner determined by the Authority.
(3) A procuring entity shall, where an agreement to remedy an irregularity in the performance of a contractor cannot be reached, inform the contractor, and may in addition, invoke the proceedings for dispute resolution as may be provided in a contract.
(4) A procuring entity may, in the event that a contractor fails to provide works, services or supplies in terms of the contract—
(a) withhold payment of any moneys retained;
(b) call for any performance security if such security has been furnished by the contractor; or
(c) terminate the contract.
(1) An Accounting Officer shall designate an employee within a procurement unit, who possesses the skill and experience in contract management, as a contract manager for any awarded contract.
(2) A contract manager shall be responsible for—
(a) the monitoring of the performance of a contractor in order to ensure that a delivery or performance obligation is met, or any action required to be taken is taken by an Accounting Officer in the event that the obligation is not met;
(b) ensuring that a contractor submits any required document;
(c) ensuring that a procuring entity meets any of its payment and any other obligation under a contract;
(d) ensuring that there is adequate cost, quality and time control, as may be necessary;
(e) the preparation of any required contract variation after the approval of an Accounting Officer;
(f) the submission of any required amendment to a contract;
(g) the management of any handover or acceptance procedure;
(h) the submission of any recommendation for the termination of a contract;
(i) for preparation of a periodic contractor review progress report;
(j) the keeping and maintenance of a project risk register to monitor any identified risk to a contract, and mitigation plan;
(k) ensuring that a contract is complete before the closing of the contract file and the preparation of an end of activity report in Form N set out in Schedule 1;
(l) ensuring that a record for the management of a contract is kept and maintained;
(m) ensuring that a contractor and a procuring entity comply with a contract and the provisions of the Act;
(n) the submission of information on the status and progress of a contract;
(o) the management of the drafting and generating of contracts.
(3) A contract manager shall, when performing his or her responsibilities under this regulation hold a review meeting periodically or as may be necessary to review the performance of a contract, deliberate on the way forward and prepare the reports referred to under subregulation (3).
(4) The review of a contract referred to under subregulation (4) shall consider the following—
(a) the timeline for the performance of a contract;
(b) the cost and quality performance;
(c) the risk analysis;
(d) the operational effectiveness;
(e) whether the procedure for delivery is appropriate; and
(f) any other relevant information.
100. Inspection of works, services and supplies
(1) A procuring entity shall have the right to inspect works, services or supplies at any reasonable time or place, including—
(a) during manufacture or construction;
(b) before shipment;
(c) on delivery or completion; or
(d) before final acceptance.
(2) A contractor shall ensure that a procuring entity’s right of inspection is extended to a subcontractor.
(3) A procuring entity may—
(a) observe a test conducted by a supplier or subcontractor under the supplier’s or subcontractor’s own quality control procedure;
(b) conduct its own inspection; or
(c) employ an independent third party to undertake a technical inspection.
(4) A contract shall state any requirement relating to an inspection, including—
(a) the type of inspection to conducted and the standard to be met;
(b) the location for inspection;
(c) the person to carry out the inspection;
(d) the date the inspection is to be conducted;
(e) the person responsible for the payment of the various costs of inspection;
(f) any notification or documentation required from a supplier relating to an inspection;
(g) whether any sample provided for inspection shall be provided for free of charge to a contractor; and
(h) where works or services fail, a supplier shall be liable for the rectification of any defect at his or her own expense and the cost of any additional inspection required.
101. Inspection and acceptance of works, services and supplies
(1) A procuring entity shall before accepting any works, services or supplies, or signing any interim or completion certificate, supplies receipt note or any related document, ensure that—
(a) the correct quantity or input of works, services or supplies has been received;
(b) the works, services or supplies meet the technical standard defined in a contract;
(c) the works, services or supplies have been delivered or completed on time, or that any delay has been noted;
(d) any required deliverable has been submitted; and
(e) any required manual or document has been received.
(2) Any works, services or supplies delivered shall, where applicable, be inspected, sampled and tested by a procuring entity and the works, services or supplies shall not be accepted if they are not compliant with the terms of a contract.
(3) Any works, services or supplies that do not meet the terms and conditions of a contract shall, in writing, be rejected by a procuring entity in accordance with the terms and conditions of the contract.
(4) A contractor shall be responsible for any cost and expense incurred due to a rejection of works, services or supplies referred to in subregulation (2).
(5) Any supplies rejected shall be collected by a contractor from the premises of a procuring entity within a specified time in accordance with a contract.
(1) A contract shall specify the—
(a) grounds on which the contract may be terminated;
(b) procedure to be applicable to the termination of the contract; and
(c) any other implication that may arise from the termination of the contract.
(2) Subject to subregulation (1), a contract manager may, in consultation with the legal office of a procuring entity, recommend to an Accounting Officer for the termination of a contract.
(3) A recommendation referred to in subregulation (2) shall state—
(a) any ground for the termination of a contract;
(b) any action which has been taken to avoid the termination of a contract; and
(c) a cost, if any, which a procuring entity shall be liable after the termination of a contract.
(4) An Accounting Officer may approve or reject a recommendation referred to in subregulation (2).
(5) Where an Accounting Officer has approved the termination of a contract, such termination shall be done in accordance with the terms of the contract.
(6) An Accounting Officer shall, where a contract is terminated, authorise the payment for the value of the works, services or supplies completed less any advance payment received by a contractor up to the date of a notice of termination.
(7) An Accounting Officer shall, where the Accounting Officer approves a recommendation referred to in subregulation (2), inform a contractor of such decision.
103. Termination of convenience
(1) A procuring entity may terminate a contract for convenience with the approval of an Accounting Officer.
(2) A procuring entity shall, where a contract is terminated for convenience, pay a contractor any undisputed amount due under the contract.
(1) A procurement unit shall, where a contract needs to be amended in order to change the original terms and conditions of the contract, issue a contract amendment taking into account any change in circumstances of both parties to the contract.
(2) A procurement unit shall—
(a) prepare a contract amendment in consultation with the legal office of a procuring entity and submit the contract amendment to an Accounting Officer for approval; and
(b) after the approval referred to under paragraph (a), issue the contract amendment in the same manner as the original contract.
(3) A contract amendment shall be initiated by either of the parties.
(4) A procurement unit shall not issue a contract amendment before—
(a) the approval referred to in subregulation (2)(a); and
(b) money being committed in the full amount of a price of the amended contract over the required period of such amended contract.
(5) A contract amendment for any additional quantity of the same item shall use the same unit price as the original contract or a new price according to any subsequent increase in the price during the course of the contract.
(6) An amendment or cumulative amendment, of a contract, may be increased by up to 25 per cent of the original price of a contract with a prior approval of an Accounting Officer.
(1) A variation of a contract may be issued by a procuring entity with the approval of an Accounting Officer including where the variation is within a contingency element of the contract, or such limit as the Accounting Officer may allow.
(2) Where a variation exceeds the contingency element, the variation may be increased by up to 25 per cent of the original contract price.
(3) A contract may be varied according to a compensation event or any matter relating to the variation of the contract provided in such contract.
(4) A variation of a contract shall only be permitted in accordance with the terms and conditions of the existing contract and shall be authorised by an Accounting Officer.
(5) Any money that has been committed under any contingency plan included in the total contract value may be used—
(a) to cover any variation in cost according to any formula stated in the contract; or
(b) for any additional works or services that are considered to be necessary by a procuring entity.
(1) A procuring entity shall, subject to any condition of a contract which has been included in a tender document, place the contract on a fixed price for a procurement that is to be completed within 12 months from the date of the commencement of such contract.
(2) A procuring entity may place a contract with a price adjustment provision for a procurement requirement with a duration of more than 12 months.
(3) The Authority shall provide a procuring entity with advice in connection with internationally accepted practice in relation to a pricing standard for any procurement requirement.
(1) A provision relating to a price adjustment may, subject to a condition of a contract, be included in the contract whose duration exceeds 12 months, where it is more economical for a procuring entity to accept the inflation risk than to pay an additional cost for a supplier to accept the risk.
(2) Where a provision relating to a price adjustment is included in a contract referred to in subregulation (1), a method for calculating the price adjustment, and any restriction or condition on such price adjustment, shall be clearly stated in a bidding document.
(3) A price adjustment shall be calculated by the use of a pre-defined formula which separates the total price into components such as labour, equipment, material and fuel, which are adjusted by price indices specified for each component:
Provided that if the currency of the money to be used for payment is different from the source of the input and corresponding index, a correction factor shall be applied in the formula, to avoid incorrect adjustment.
(4) A formula, price index, correction factor referred to in subregulation (3), and a base date for application shall be clearly stated in a bidding document and resulting contract.
(5) A formula and a price index referred to in subregulation (3) shall be appropriate to the type of procurement, the source of an input and shall use the industry standards wherever possible.
(6) A procuring entity shall, where there are no industry standards, or any other appropriate formula available, use the sample formula specified in this regulation.
(7) A request for a price adjustment shall be submitted to a procuring entity by a contractor, not more than three months from the time the circumstances upon which the price adjustment is based arise.
(8) A procuring entity shall, where there is a statutory price adjustment, pay an adjusted price to a contractor from the effective date of the statutory price adjustment, upon submission by the contractor of a request for such payment.
(1) A bidding document and any resulting contract shall detail the payment terms that shall apply to the contract, and such payment terms shall specify the—
(a) method of payment;
(b) payment structure;
(c) payment document;
(d) period of payment; and
(e) currency of money used for payment.
(2) A method of payment under any contract entered into in terms of these Regulations shall be the method acceptable to the Bank of Botswana.
(1) A procuring entity shall consider and state a payment structure in a bidding document and the resulting contract for each procurement.
(2) A payment structure and an amount of payment shall be determined for each procurement requirement by best practices, and the payment structure may include—
(a) an advance payment;
(b) a phased payment, which shall be linked to a specific deliverable and may be stated in percentage terms of a defined amount or specific amount;
(c) a regular interim payment, which shall be linked to a specific contract event, such as an installation or a warranty; and
(d) any retained payment, which shall be linked to a specific contract event, such as an installation or a warranty.
(1) Subject to the provisions of the Public Finance Management Act (Cap. 54:01), and where best practices dictate, a procuring entity 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 be required and the requirement for a security shall be stated in a bidding document.
(3) An advance payment may be made for any activity including—
(a) the mobilisation of costs in respect of the provision of works;
(b) the start-up costs in respect of the provision of services; and
(c) any special circumstances in respect of the provision of supplies, such as items that have to be specially or custom manufactured.
(4) Notwithstanding subregulations (1) and (2), an advance payment may, with the approval of an Accounting Officer, be made for works, services or supplies without the requirement for advance payment security, where—
(a) such payment is required in accordance with an industry practice; or
(b) there is a special circumstance with a justifiable reason.
(5) An advance payment shall be recovered from any subsequent payment due to a contractor, which shall be subject to a reduction in equal installment over a period not exceeding 50 per cent of the period of a contract.
111. Interim or phased payments
(1) A contract may, where best practices dictate, be entered into by a procuring entity in which an interim or a phased payment is permitted.
(2) A procuring entity shall, where an interim or a phased payment is permitted, comply with the following conditions—
(a) a payment shall be linked to a specific and verifiable deliverable, contract event, time period or work, which must be stated in a bidding document and the resulting contract;
(b) any individual payment shall not exceed the cost or value of a deliverable, time period or work to which it is linked;
(c) a payment may require the provision of the payment security where, during the delivery of the works, services or supplies, risk or title of such works, services or supplies remained with the contractor; and
(d) where the payment security is determined to be appropriate, the provisions of these Regulations shall apply.
(1) Where a procuring entity has determined that a retained payment is appropriate, a contract shall provide—
(a) a percentage or amount of a total value of the contract to be retained;
(b) the period or event at which the retention shall be released; and
(c) any document that shall be used as proof of, or certify, the period or event referred to in paragraph (b).
(2) A payment for a security may be substituted for a retained payment in accordance with subregulation (1).
(1) A payment shall not be made to a contractor or in respect of any deliverable due against works, services or supplies contract without the receipt of the deliverable as provided in the contract.
(2) Where a payment is made before receipt of a deliverable—
(a) a payment security shall be required and such requirement shall be stated in a bidding document;
(b) a payment security shall be in the manner and from an institution that is acceptable to the Bank of Botswana;
(c) the security shall be in the format provided by the Authority in a bidding document; and
(d) the security provided by a contractor shall be valid for an agreed period beyond the final expected transaction date of the resulting contract or expected release date, as may be appropriate.
(1) A procuring entity shall state, in a bidding document, a document against which a payment is to be made.
(2) A document referred to in subregulation (1) may include information certifying the—
(a) delivery of a requirement or receipt of a requirement by the consignee in accordance with the delivery terms of a contract;
(b) itemised list of the requirements within any package delivered;
(c) insurance coverage of a delivered item;
(d) successful inspection of a delivered item;
(e) origin or eligibility of a delivered item;
(f) payment of a particular cost specified in a contract, such as duty, levy or tax that may be due and payable by a contractor on any item delivered;
(g) acceptance of installation or commissioning by a user of any item delivered;
(h) receipt of any report, manual, guide or other documentation required as a deliverable against a contract;
(i) completion of works or services required against a contract; and
(j) receipt of payment due to any subcontractor.
(3) A payment documentation from a contractor shall include an original invoice from the contractor certifying the payment due.
(1) A procuring entity shall be responsible for organising any payment to be made to a contractor within 30 days of the certification of a payment request.
(2) Except as otherwise provided in a tender document, the period of payment of a contract shall be within 30 days from the date of the certification of an invoice.
(3) A payment to a contractor shall, unless with the approval of an Accounting Officer, not be ceded.
116. Payment and payment delays
(1) A procuring entity shall ensure that any request for a payment of a contract is processed promptly within the payment period specified in the contract.
(2) A contractor shall submit an invoice to a procuring entity for payment in accordance with the terms of a contract.
(3) If an invoice referred to in subregulation (2) has an error or any discrepancy, is supported by incorrect or incomplete documentation or is in any other way not in accordance with the terms of a contract, the request shall not be certified as correct, and a payment shall not be made.
(4) An invoice which is not certified as correct shall, within five days of the date of receipt of the invoice, be returned to a contractor, detailing the reasons such invoice cannot be certified for payment.
(5) Where an invoice has been returned, a contractor shall be entitled to submit a new or amended payment invoice to a procuring entity, which shall be treated in the same manner as the original invoice.
(6) A delay in payment to a contractor shall attract interest at the rate to be determined by the Minister.
(7) Notwithstanding the provisions of subregulation (3), the querying by a procuring entity of any part of a payment invoice from a contractor shall not delay the payment of the unchallenged portion of the invoice to the contractor.
117. Currency of money used for payment and related limitations
(1) A bidding document shall state any limitation on a currency of money to be used in a bidding or the currency of money to be used for payment that may apply to a procurement process or resulting contract.
(2) Unless otherwise stated in a bidding document or contract, the currency of money to be used for bidding and payment of a contract shall be—
(a) Botswana Pula, for works, services and supplies; and
(b) a convertible currency for works, services or supplies originating outside Botswana.
118. Export and import licence responsibility
Unless otherwise provided by the terms of a delivery stated in a bidding document, a contract for a procurement requirement that involves an—
(a) export licence shall be the responsibility of a contractor to ensure the availability of the export licence, and a procuring entity shall provide any assistance necessary for the contractor to process any application for the export licence; and
(b) import licence shall be the responsibility of a contractor, and a procuring entity shall render any certification necessary to the contractor to process any application for the import licence.
(1) A procuring entity shall, where applicable, ensure that insurance or indemnity cover is arranged to cover each procurement requirement, and the appropriate provision shall be included in a bidding document and the resulting contract.
(2) Where applicable, insurance or indemnity cover shall be arranged with an insurance company registered in Botswana.
(1) A payment shall be made by a procuring entity in the currency stated in the contract.
(2) Where a payment to a contractor is to be made in Botswana, as may be provided in a contract, and the contractor is required to remit all or part of the payment outside Botswana, the contract amount in Botswana currency shall be paid to such contractor less or plus, as the case may be, an amount as specified on the contractor’s invoice representing any of the following exchange rate movement, any—
(a) fluctuation which may have occurred between the date of conversion to Botswana currency as reflected in a bidding package and bid, and a date of invoice:
Provided that the invoice date is not more than 10 days later than the date of the delivery or shipment; and
(b) further fluctuation in the exchange rate, which may occur between a date of invoice and the actual date of remittance outside Botswana:
Provided that such further fluctuation is more than 5 per cent, and the remittance is made within 10 days of the date of such contract or purchase order, as may be applicable.
(3) Any claim by a contractor for an exchange rate movement shall be accompanied by the following documentation—
(a) a copy of the relevant invoice;
(b) a copy of the bank remittance advice;
(c) a copy of the purchase order or contract;
(d) import documents stamped by the relevant competent authority; and
(e) any other information which may be reasonably requested by the contract manager.
(4) Failure by a contractor to provide the information referred to in subregulation (3) may delay or invalidate a claim.
(5) Where a contractor fails to comply with a requirement of a contract affecting the admissibility of the contractor’s claim, the cost of the exchange rate movement shall be borne by such contractor.
(1) A procuring entity shall, where applicable, require a contractor to submit a performance security or professional indemnity to guarantee the proper performance of a contract.
(2) Notwithstanding subregulation (1), the services or supplies from a micro, small and medium enterprise shall be exempt from the requirement of a performance security or professional indemnity to guarantee the proper performance of a contract.
(3) A procuring entity shall specify in a tender document any requirement with respect to an issuer and the nature, form, amount and other principal terms and conditions of the required performance security.
(4) A contractor shall, within a period provided in a tender document, after receipt of a notice of acceptance, furnish a procuring entity with a performance security in accordance with the terms of a contract and in the form provided in the tender document.
(5) A procuring entity may require a contractor to submit the performance security in any format provided by the Authority.
(6) A procuring entity shall, where an amendment of a contract after signature is necessary, and the amendment is effected, require a contractor to provide an additional performance security to cover any cumulative increase of more than 10 per cent of a price of the contract.
(7) A performance security shall be kept by a procuring entity until the completion of a contract and shall be released after the issuance of the certificate of acceptance of a final report or certificate of completion of works, services or supplies, if there is no claim filed against a contractor, contract guarantor or surety company.
PART XII
Ethics and Transparency in Public Procurement (regs 122-125)
(1) An Accounting Officer and an employee of a procuring entity shall disclose any direct or indirect interest in any company with which such the procuring entity proposes to deal with, and declare any other conflict of interest at any point during a procurement process in Form 0 set out in Schedule 1.
(2) An employee of a procuring entity who discloses any direct or indirect interest in a company referred to in subregulation (1) shall not take part in any consideration or discussion of, or vote on any issue relating to, a procurement involving the company, unless an Accounting Officer directs otherwise.
(3) A disclosure of interest under this regulation shall be recorded in the manner determined by the Authority.
(4) An employee of a procuring entity who, at any time before or during a procurement process, discovers that he or she has or may have a conflict of interest shall, in writing declare such interest and record the declaration in manner determined by the Authority.
(5) A declaration of direct or indirect interest by an Accounting Officer shall be referred to the Accounting Officer’s supervisor for direction on how to proceed.
123. Confidentiality relating to procurement process
(1) Any information relating to a procurement process shall not be disclosed to any bidder or person who is not involved in the procurement process unless such disclosure is required by law or court order.
(2) An employee of a procuring entity, a procurement agent or a procurement service provider, or any other resource person solicited to advise the procuring entity in a procurement process, who is likely to become aware of a proprietary and confidential information of a bidder and the bidder’s business shall sign and be bound by confidentiality in Form P set out in Schedule 1, and shall not disclose such information to any person other than an authorised person.
(3) A procuring entity shall not disclose any information which has been submitted to the procuring entity by a bidder, which the bidder has designated confidential, and which includes a technical or trade secret, and any confidential aspect of a tender.
(4) A procuring entity may impose on a bidder, a requirement to protect any confidential information which the procuring entity makes available to the bidder during a procurement process.
124. Declassification of information
(1) A bidder shall indicate in a bid, which information the bidder considers confidential and whose disclosure shall be prejudicial to the interest of the Government or the interest of a contractor or private party.
(2) Where a bidder fails to indicate which information is confidential in terms of subregulation (1), any information not indicated as such may be subject to declassification after two years following an award of a tender.
A procuring entity shall, for purposes of transparency, impartiality and fairness, in a system referred to in section 8(1)(f) of the Act, and by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish any—
(a) decision arising from a complaint and challenges dealt with by the procuring entity;
(b) record of a bid opening including any detail relating to the bid;
(c) any adjudication decision regarding a procurement activity except on procurement of highly sensitive works, services, supplies or any combination thereof, however classified; and
(d) any other decision or information as may be determined by the Authority.
PART XIII
Maintenance of Records by Procuring Entities (regs 126-130)
(1) A procuring entity shall keep and maintain, or cause to be kept and maintained, a procurement record which shall include—
(a) a request to initiate procurement proceedings;
(b) a copy of any published advertisement or shortlist;
(c) a pre-qualification and bidding document, and any amendment or clarification to the pre-qualification and bidding document;
(d) a record of a bid opening;
(e) a copy of a record of an evaluated bid and a response on any clarification requested;
(f) an evaluation report;
(g) a contract;
(h) any document related to a contract management, including contract payment and contract performance, warranty, bank guarantee and any claim;
(i) minutes of a meeting related to any procurement, including a negotiation;
(j) any correspondence between a procuring entity and a bidder;
(k) any submission to an Accounting Officer;
(l) any decision of an Accounting Officer related to a procurement, including—
(i) the choice of procurement procedure,
(ii) the approval of bidding documents,
(iii) the approval of evaluation reports,
(iv) the contract award,
(v) the approval of contract documents and contract amendments, and
(vi) any decision to suspend or cancel procurement proceeding;
(m) any other record relating to procurement.
(2) A record referred to in subregulation (1) shall be made available to any person authorised by an Accounting Officer to access the record or any part of such record.
(3) A person who wishes to make a copy of a record referred to in subregulation (1) shall, in writing, be authorised by an Accounting Officer to make the copy, and such copy shall be certified and indexed, and the original shall be retained by a procuring entity.
(4) A procuring entity shall keep and maintain a record of a procurement and contract management referred to under subregulation (1)(h) for at least five years from the date of a decision to terminate the contract or the date of expiration of the contract, except where there is a dispute relating to such contract in which case the record shall be kept for an additional year after the expiration of the contract or the settlement of the dispute, whichever comes later.
(5) An Accounting Officer shall not transfer an original copy of any record except by an order of court.
(1) A procuring entity shall keep and maintain a contract record which may include—
(a) the signed contract including any signed contract amendments;
(b) any variation issued under the contract;
(c) any post contract documentation relating to the fulfillment of an obligation under the contract, particularly any copy of a bank guarantee or advance payment guarantee;
(d) the minutes of any meeting related to the contract management, including technical progress meeting, progress of such contract or any review meeting;
(e) any document with proof of any delivery of supplies or completion certificate in relation to the contract for works or services;
(f) any copy of any invoice for works, services or supplies including any work paper verifying the accuracy of any payment claimed and any detail of the actual payment authorised by a contract manager;
(g) any copy of cumulative payment worksheet with proof of the management of any payment made;
(h) any copy of any claim made by a contracts manager on behalf of the procuring entity in respect of any warranty, non-warranty, short supply, damage and any other claim upon a supplier or upon the procuring entity;
(i) any correspondence between the procuring entity and contractor supervising consultant or engineer; and
(j) any submission and decision on any approval related to a contract management, including the authorisation of any contract amendment.
(2) Any contract record kept and maintained in terms of this regulation may be accessible to any person authorised by an Accounting Officer.
(3) An Accounting Officer shall not transfer an original copy of a contract record except by an order of court.
128. Requirement for reporting
A procuring entity shall, for every contract or framework contract submit a written report on an awarded tender to the Authority, in the manner to be determined by the Authority.
129. Safe keeping of documents
(1) An Accounting Officer shall, through a procurement unit, provide for the safe keeping of any procurement record of a procuring entity by ensuring that the procurement record is kept safe and secure, in accordance with an applicable record management guideline or policy.
(2) Any securities, negotiable document or any other financial instrument received by a procuring entity shall be deposited by the responsible employee of the procuring entity in a secure place for safe keeping as may be authorised by an Accounting Officer.
(3) Any copy of an original record or document referred to in subregulations (1) and (2) shall be kept in a procurement record by a procuring entity, annotated with information on the location of the original record or document and the date of receipt of the original record or document.
130. Access to documents relating to procurement
(1) Any person who wishes to access any document or database in terms of section 83(2) of the Act shall, on request, be given access to the document or database, upon payment of a fee provided by the Authority within 10 days of the submission of such request.
(2) A document or database referred to in subregulation (1) shall be made available in the manner to be determined by the Authority.
(3) Any other information or record relating to procurement which is not subject to section 83(2) of the Act shall be made accessible to an authorised person.
PART XIV
Procedure for Monitoring and Compliance by Authority (regs 131-133)
131. Procurement, contract and performance audits
(1) The Authority shall audit a procuring entity at any time and where the circumstance requires, select a project or contract of interest within the procuring entity for the audit, in accordance with a criteria to be determined by the Authority.
(2) The Authority shall, before conducting an audit referred to in subregulation (1), inform a procuring entity on its intention to audit the procuring entity, and on the objective, and the audit scope and audit criteria to be used for the audit, and provide other information as may be relevant for such purpose.
(3) A procuring entity shall, in order to enable the Authority to efficiently carry out an audit, make available any document or record required for the audit under this regulation in a timely manner.
(4) The Authority shall, upon completion of an audit and before issuing the final audit report, submit in writing to a procuring entity, its preliminary findings of the audit.
(5) A procuring entity shall submit a detailed response to the preliminary findings of an audit to the Authority within 14 days of receiving such findings.
(6) The Authority shall prepare a final report, taking into consideration the response from a procuring entity, if any.
(7) The Authority shall submit the audit report to a procuring entity and the Ministry responsible for finance, together with a recommendation of the Authority if any.
(8) The Authority shall make audit report available to and accessible by the public upon payment of a fee set out in Schedule 2.
132. Reporting to Authority by procuring entities
A procuring entity shall submit a report to the Authority in the manner to be determined by the Authority, on the following—
(a) an annual procurement plan;
(b) a procurement plan adherence;
(c) an awarded contract and implementation of the contract;
(d) the implementation of a reservation and preference scheme;
(e) any complaint heard and the results from the hearing of such complaint;
(f) an end of activity report;
(g) any retroactive approval; or
(h) any other report as required by the Authority.
(1) The Authority shall prepare a statistic on any contract signed by a procuring entity, in order to understand the status of public procurement and formulate and implement effective procurement policy.
(2) The Authority shall provide for the manner of reporting and request a procuring entity to provide information necessary to prepare statistic on any contract.
(3) A procuring entity shall, upon receipt of a request to provide an information on a statistic referred to in subregulation (2), submit the information within 14 days of the request.
(4) A procurement oversight unit shall, in the manner to be determined by the Authority, prepare a report on any tender awarded by a procuring entity and submit the report to an Accounting Officer.
(5) The report referred to under subregulation (4) shall include information on whether the provisions of the Act have been complied with.
(6) An Accounting Officer shall, upon receipt of a report in terms of subregulation (4), submit a copy of the report to the Authority within 14 days of such receipt.
(7) The Authority may, upon receipt of a report under this regulation, if the Authority considers it necessary, request an Accounting Officer to submit a report or any other relevant information on any procurement implemented in contravention of the Act, within 14 days after such receipt, for review and necessary action.
(8) A report referred to under subregulation (7) shall be in the manner determined by the Authority.
PART XV
Procedure for Investigations by Authority (regs 134-136)
(1) The Authority may undertake an investigation of a procurement activity on the basis of the following—
(a) information from a report, audit finding and inspection under these Regulations;
(b) referral of any matter by a Public Oversight Agency; or
(c) any other information received by the Authority.
(2) Subject to the provisions of the Act, the Authority may request any employee of a public body or any other person, who, in its opinion, is able to assist in an investigation of any matter, to furnish information and produce any document under his or her control, and the information shall be submitted to the Authority within seven days from the date of the receipt of the request.
(3) The Authority shall, after conducting an investigation, produce a written report which shall include a finding of the investigation and a directive.
(4) The Authority shall submit a report referred to in subregulation (3) to an Accounting Officer and the Accounting Officer shall respond in writing to a directive on the report within 14 days from the date of the receipt of the directive, indicating any action to be taken and shall, in addition, prepare and submit to the Authority a report on the implementation status within three months from the date of receiving such directive.
135. Co-operation with Public Oversight Agencies
(1) The Authority may, during, or after conducting, an investigation, cooperate with a Public Oversight Agency or any other authority responsible for public oversight, and establish a mechanism for the sharing of any information relating to the investigation.
(2) Where a Public Oversight Agency carries out an investigation, the Public Oversight Agency shall corporate with the Authority and share any information relating to the investigation with the Authority using a mechanism referred to in subregulation (1).
136. Delegation of functions and powers of Authority
(1) The instrument of delegation provided under section 11(3)(a) of the Act shall state—
(a) the delegated functions or powers;
(b) the person to whom the delegation is made;
(c) the date of commencement of the delegation;
(d) the duration of the delegation, which may be a specified period of time or an unspecified period of time;
(e) the limitations or exceptions to the delegation, if any; the requirements for reporting on the execution of the delegated functions or powers; and
(f) that the delegation may, by written notice of the Authority, be revoked at any time.
(2) A person who wishes to appeal to the Authority against a decision made under a delegated function or power shall, within 14 days from the date of the communication of the decision, submit a written appeal to the Tribunal.
PART XVI
Registration of Contractors (regs 137-155)
(1) The Authority shall enter in the Contractors’ Register, in respect of each contractor—
(a) the name and qualification of a director or partner, key staff or employee who is technically qualified or experienced in the relevant category, where applicable;
(b) in the case of an individual, his or her qualification, skill or experience;
(c) duration of the registration;
(d) type of the registration; and
(e) any other particulars which the Authority may, from time to time, direct.
(2) A member of the public shall, in terms section 91(2) of the Act, pay a fee set out in Schedule 2 to access the Contractors’ Register.
(3) A contractor shall submit particulars of change of the contractor’s registration in Form Q set out in Schedule 1 to the Authority.
(4) A contractor who fails to submit particulars referred to in subregulation (1) shall pay a penalty fee of P5 000 to the Authority.
138. Registration requirements
A contractor who wishes to be listed in the Contractors’ Register shall be eligible for registration if the contractor meets the minimum registration requirement in respect of a class or category of registration as may be issued by the Authority, or any other requirement that the Authority may provide.
139. Application for registration
(1) A contractor may apply to the Authority in Form R set out in Schedule 1, upon payment of a fee set out in Schedule 2.
(2) An application referred to in subregulation (1) shall be accompanied by—
(a) a certified copy of a certificate and any other relevant document relating to the qualification of a contractor for registration;
(b) information proving that a contractor is a holder of the minimum technical qualification, skill and experience required by the Authority for the class of contract works, services or supplies in respect of the registration sought;
(c) information on whether a contractor meets a requirement for the category of works, services or supplies for which the registration is sought; and
(d) any other information that the Authority may require from time to time.
(3) An application for registration shall not be considered as duly completed for purposes of the Act unless information required by the Authority is submitted to the Authority by a contractor, an adjudication has been made on the application, and a certificate issued.
140. Inspection of contractor’s business
The Authority may, after receipt of an application for registration from a contractor, inspect the contractor’s business.
(1) The Authority shall, after an inspection referred to under regulation 140 prepare an inspection report.
(2) An inspection report under this regulation shall include the findings from the inspection in respect of the operations of a contractor’s business relating to the application for registration in the Contractors’ Register.
142. Consideration of application for registration
The Authority shall consider an application by a contractor to be registered in the Contractors’ Register and make its decision within a timeline determined by the Authority from the date of the receipt of the application, and such consideration may be in relation to—
(a) an approval of such application which meets a requirement for registration;
(b) a rejection of such application;
(c) the returning of such application where the application is incomplete or it does not comply with a requirement for registration; or
(d) a refusal to register a contractor—
(i) if an applicant has been convicted of an offence under the Act,
(ii) if it is in the public interest to do so, or
(iii) for any other reason as may be determined from time to time by the Authority.
143. Certificate of registration
(1) A certificate of registration issued in terms of section 92(3)(b) of the Act shall contain details as may be provided by the Authority from time to time.
(2) A certificate of registration under this regulation may be issued electronically.
144. Refusal to register contractors
(1) Notwithstanding regulation 142(d), the Authority may not register a contractor if in the opinion of the Authority the—
(a) contractor does not meet a requirement for registration in the Contractors’ Register; or
(b) contractor presents false information to the Authority.
(2) The Authority shall give a contractor an opportunity to be heard before the Authority makes its decision in terms of subregulation (1).
(3) The Authority shall, where it does not register a contractor under this regulation, communicate its decision, in writing, to the contractor within seven days of the date of such decision and shall state the reasons for such refusal.
145. Application for upgrading or downgrading
(1) A contractor may apply to the Authority for the upgrade of the contractor in Form S, or for the downgrade of the contractor in Form T, set out in Schedule 1, upon payment of a fee set out in Schedule 2.
(2) The Authority shall, within 21 days after receipt of an application referred to in subregulation (1), process the application and inform the contractor of its decision.
146. Upgrading or downgrading of contractors
(1) The Authority may, in its decision referred to in regulation 145(2) upgrade or downgrade a contractor and issue the contractor with a higher grade or lower grade where applicable.
(2) The Authority shall, where it intends to upgrade or downgrade a contractor, give such contractor a 14 days’ notice within which the contractor shall furnish reasons to not be upgraded or downgraded.
(3) The Authority shall, after the period referred to in subregulation (2), consider the reasons furnished by a contractor and make a decision.
(4) The Authority shall, where a contractor fails to respond in terms of subregulation (2)—
(a) proceed to upgrade or downgrade the contractor;
(b) inform such contractor in writing; and
(c) enter the new grade and code in the Contractors’ Register.
147. Non-registration of citizen contractors in micro procurement
A procuring entity shall, with the written approval of the Authority, engage a contractor who is not registered to participate in procurement a process except a procurement process relating to—
(a) micro procurement;
(b) informal sector;
(c) international bidding for bidders not domiciled in Botswana; or
(d) a Government policy,
as the Authority may determine.
(1) A contractor that is registered in the Contractors’ Register shall comply with any grading guideline or rule issued by the Authority from time to time with respect to works, services or supplies.
(2) The Authority may limit the participation of a contractor to a grade under which the contractor is registered in order to—
(a) achieve a fair and equitable distribution of procurement activities; or
(b) promote the participation of a citizen in procurement.
(3) A contractor shall be allowed to register only one company per subcode at a specific grade.
149. Removal from Contractors’ Register
(1) The Authority may at any time direct that the name of a contractor be removed from the Contractors’ Register where the contractor—
(a) requests that the contractor’s name be removed from the Contractors’ Register, subject to the approval by the Authority;
(b) fails to pay an annual subscription fee for two consecutive years;
(c) no longer meets the registration criteria;
(d) fails to comply with the Authority’s terms and conditions for his approval;
(e) has obtained registration by fraud or misrepresentation;
(f) is a member of a professional body specified by law and the membership has been suspended or cancelled by a professional body;
(g) has acted in contravention of the code of conduct set out in Schedule 3;
(h) has been convicted of an offence, whether in Botswana or another jurisdiction—
(i) in respect of which a sentence of imprisonment without an option of a fine may be imposed, or
(ii) involving dishonesty; or
(i) is deceased.
(2) The Authority shall not vary, amend or withdraw a registration of a contractor in the Contractors’ Register unless the Authority has—
(a) afforded the contractor an opportunity to furnish reasons why the registration should not be varied, amended or withdrawn; and
(b) informed the contractor of its intention to vary, amend or withdraw the registration.
(3) Except in the circumstances specified in subsections (1)(a) and (2), the Authority shall inform a contractor of the removal of the name of the contractor from the Contractors’ Register by a recorded delivery or a registered letter to the address appearing in the Contractors’ Register against such contractor’s name immediately before such removal.
(4) A contractor whose name has been removed from the Contractors’ Register under this regulation shall, with effect from the date of the removal, cease to be registered for the purpose of the Act, and shall be obliged to immediately surrender to the Authority the certificate of registration for cancellation.
(5) Where a contractor has been de-listed from the Contractors’ Register, the contractor shall not be re-registered under any other name.
150. Restoration to Contractors’ Register
(1) A contractor whose name has been removed from the Contractors’ Register may apply to the Authority in Form U set out in Schedule 1, and upon payment of a fee set out in Schedule 2, for the restoration of the contractor’s name in the Contractors’ Register.
(2) An application referred to in subregulation (1) shall be accompanied by—
(a) proof that a contractor has complied with the registration requirements under the Act; and
(b) a payment of arrears relating to the registration in the Contractors’ Register, if any.
(3) The Authority may restore a contractor to the grade and code to which the contractor was previously registered under if such contractor satisfies the Authority that the contractor meets the requirements for re-registration in terms of subregulation (2).
151. Updating and correction of registration system
The Authority may interface its registration system with any other platform provided by a competent authority to ensure that any change on information relating to a contractor is updated in accordance with the latest development.
(1) A fee for the registration of a contractor in the Contractors’ Register shall be—
(a) as set out in Schedule 2; and
(b) paid by the registered contractor according to such contractor’s grade and code.
(2) A fee for the registration of a contractor in the Contractors’ Register shall be due on the notification of the registration or re-registration and shall be payable to the Authority.
A subscription fee for a registered contractor—
(a) shall be determined by the Authority;
(b) may be reviewed annually by the Authority; and
(c) shall be paid by the registered contractor to the Authority according to such contractor’s grade or code.
A contractor shall, in terms of section 97 of the Act, apply for the renewal of a certificate of registration in Form V set out in Schedule 1 upon payment of a fee set out in Schedule 2.
155. Appeal of decision of Authority to not register contractors
A contractor who is aggrieved by the decision of the Authority to, refuse to register the contractor, remove the contractor’s name from, or any other decision relating to the registration of such contractor in, the Contractors’ Register, may, in writing, appeal to the Tribunal within 14 days from the date of the decision and submit any document or information that may be relevant to the appeal.
PART XVII
Suspension and De-listing of Contractors (regs 156-170)
156. Suspension and de-listing committee
(1) The Authority shall establish a suspension and de-listing committee.
(2) The functions of the suspension and de-listing committee shall be to investigate whether a contractor complies with the code of conduct or terms of a contract.
(3) The suspension and de-listing committee shall consist of seven members appointed by the Authority.
(4) The Authority shall, by Notice in the Gazette, publish the appointment of the members of the suspension and de-listing committee, specifying the dates of their appointment and the period for which they are appointed to the suspension and de-listing committee.
157. Operations of suspension and de-listing committee
(1) Notwithstanding the generality of regulation 156(2), the suspension and de-listing committee shall, upon receipt of a complaint submitted to it by the Authority—
(a) investigate the complaint by making reference to a—
(i) code of conduct set out in Schedule 3, or terms and conditions of a contract, and
(ii) procuring entity concerned and its records and decision relating to such compliant, if any;
(b) where necessary, seek the advice of any person with expertise related to such complaint;
(c) establish whether the conduct of a contractor is consistent with set practices of contractors in a similar field; and
(d) conduct such further investigation as may be necessary to make an informed determination on such complaint.
(2) The suspension and de-listing committee may, at any stage of an investigation, hold a hearing with a contractor that is under investigation.
(3) The suspension and de-listing committee may summon any witness to appear before the committee to give evidence during an investigation.
(4) A contractor may bring its own witness to a hearing referred to in subregulation (3) and shall provide the suspension and de-listing committee with a list of the contractor’s witnesses, if any, no later than five days before the date of the hearing.
(5) The suspension and de-listing committee shall, in writing, before a hearing under this regulation, furnish a contractor with the particulars of the complaint made against the contractor.
(6) The suspension and de-listing committee shall give a contractor an opportunity to reply to a complaint in terms of this regulation not later than five days after receipt of a notice to reply.
(7) The suspension and de-listing committee shall, after it has concluded an investigation and a hearing, and has made a determination, submit a recommendation on the complaint to the Authority within 10 days.
(8) A contractor required to appear before the suspension and de-listing committee shall appear in person.
158. Tenure of office of members of suspension and de-listing committee
A member of the suspension and de-listing committee shall be appointed for a period not exceeding four years on such terms and conditions as may be specified in the instrument of appointment shall be eligible for re-appointment for one further term not exceeding four years.
159. Meetings of suspension and de-listing committee
The suspension and de-listing committee shall regulate its own proceedings in conducting its business.
160. Grounds and sanctions for suspension, de-listing or debarring of contractors
A procuring entity may recommend to the Authority, the suspension, de-listing or debarring of a contractor—
(a) where the contractor contravenes the code of conduct set out in Schedule 3;
(b) where the contractor does not comply with the terms of a contract; or
(c) where the conduct of the contractor is not consistent with set practices.
161. Investigation into conduct of contractors
(1) The Authority may, on its own volition or upon receipt of a written allegation made by or on behalf of any person alleging a misconduct by a contractor, institute an investigation into the conduct of the contractor.
(2) The Authority may conduct an investigation in terms of subregulation (1) or refer it to a competent authority.
(3) The Authority shall, upon receipt of a written allegation against a contractor, by notice to the contractor, inform and give such contractor the grounds of the allegation.
162. Submission of allegations to Authority
(1) Any person may, in Form W set out in Schedule 1, submit an allegation on any conduct of contractor which contravenes the code of conduct set out in Schedule 3 or the terms of the contract to the Authority within 14 days of becoming aware of such conduct.
(2) A conduct of a contractor which contravenes the code of conduct, referred to in subregulation (1) shall arise from circumstances relating to the execution of the contract by the contractor.
(3) A person referred in subregulation (1) shall substantiate his or her allegation of under this regulation to the satisfaction of the Authority.
(4) The Authority shall, upon receipt of an allegation under this regulation, submit the allegation to the suspension and de-listing committee to be investigated.
163. Process of investigations on conduct of contractors
(1) The Authority may, in exercising its powers and functions to investigate in terms of the Act, require a person to produce information, a document or any evidence concerning an investigation to determine any possible ground for the contravention of the provisions of the Act by a contractor.
(2) A person required to produce information, a document or evidence under this regulation shall submit the information, document or evidence within 10 days from the date of receiving the request.
(3) The Authority may request a contractor against whom an allegation is made or who is being investigated, under these Regulations, to furnish the Authority, within a period specified by the Authority, an explanatory response to the allegation which shall be verified by an affidavit.
(4) The Authority may—
(a) summon before it or before a unit that the Authority may designate for purposes of an investigation under this regulation, a contractor against whom an allegation is made or whose conduct may appear to the Authority to require an investigation;
(b) call upon a contractor referred to in paragraph (a) to produce any document, contract, book, paper, specification, quantities or other writing in such contractor’s control, relating to the complaint under investigation; and
(c) hear any evidence and inspect any document which the Authority or a contractor may desire to present.
(5) A contractor against whom an allegation is made in terms of these Regulations shall have the right to appear before the Authority and to be heard personally, and may call such evidence and produce such documents as may be relevant.
(6) A contractor who has been summoned in terms of this regulation commits an offence if the contractor fails without sufficient cause to—
(a) appear before the Authority;
(b) answer fully and satisfactorily to the best of such contractor’s knowledge any question put to the contractor by the Authority; or
(c) to produce any documents in possession, or under the control, of such contractor, required by the Authority to be produced.
164. Investigation officers of Authority
(1) The Authority may, in conducting an investigation under the Act, as it may consider it necessary, appoint a person to be an investigation officer of the Authority, for purposes of carrying out the investigation.
(2) An investigation officer appointed as such under subregulation (1) shall, for the purpose of ascertaining whether the provisions of the Act are being complied with, have power at all reasonable times to enter into contractor’s business premises, any site where construction works or services are being carried out, or any other location deemed relevant to the investigation, and make such enquiry or inspection as may be necessary for the purposes of an investigation.
(3) An investigation officer may, in the course of an investigation under these Regulations—
(a) require information concerning the registration of a contractor, accreditation and certification of a construction worker and supervisor engaged by a contractor, or information regarding the payment of a levy, and any person required to give the information shall do so truthfully;
(b) require any person to produce any records required to be kept under this Act, and may make a copy of such records; or
(c) by notice in writing order the suspension of all or any part of the works in respect of which the provisions of the Act have not been complied with until the date of such compliance.
(4) An investigation officer shall, when exercising powers and functions under the Act, identify himself or herself by producing a written authorisation to exercise such powers and functions.
(5) An investigation officer shall, upon completion of an investigation, submit a written report with a recommendation to the Authority on an action to be taken.
(1) The Authority shall, on receipt of a recommendation of an investigation officer under regulation 164(5), make a decision and immediately, by a written notice, communicate its decision to a contractor, shareholder, director or key staff which may—
(a) impose any of the following orders, or combination thereof, against the contractor—
(i) caution or reprimand such contractor in writing,
(ii) suspend such contractor for a specified period of time from participating in a procurement process,
(iii) suspend such contractor conditionally on any terms, pending the fulfilment by the contractor of the conditions of suspension,
(iv) issue a remedial order, where such contractor is ordered to comply with a remedial measure within a specified time, failing which the contractor shall be suspended for a specified period of time from participating in a procurement process, or
(v) de-list and remove the contractor from the Contractors’ Register; or
(b) dismiss the complaint.
(2) The Authority shall, from time to time issue the duration of suspension and de-listing under this regulation.
(3) Where the Authority has suspended or de-listed a contractor in terms of section 100 of the Act, the—
(a) Authority shall revoke the certificate of registration issued under these Regulations, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish the suspension or de-listing indicating the duration of such suspension or de-listing;
(b) Authority shall, in writing, inform a procuring entity that the contractor has been suspended or de-listed; and
(c) contractor shall, where applicable, within seven days of receipt of a decision of the Authority in terms of this regulation, submit to the Authority, the certificate of registration.
(4) The Authority may, after making its decision under these Regulations, require a contractor to compensate a procuring entity of any proceeds or any other benefits received by the contractor relating to a contract with the procuring entity, which proceeds or benefit such contractor is not entitled to.
(5) The decision of the Authority under this regulation shall be made within 30 days of receipt of a recommendation of the suspension and de-listing committee.
166. Suspended or de-listed contractors
A contractor that has been suspended or de-listed in terms of the provisions of the Act shall remain liable to fulfil the contractor’s obligations under any contract they entered into with a procuring entity before they were suspended or de-listed except where fraud or corruption is established.
167. Termination of de-listed contractors
(1) A procuring entity may, with the approval of the Authority, where a contractor has been de-listed and removed from the Contractors’ Register in terms of the provisions of the Act, terminate, or continue with, a contract entered into with the contractor.
(2) The Authority shall, in writing, inform a procuring entity of a decision referred to suspend or de-list a contractor and direct the procuring entity to terminate a contract.
168. Register of suspended or de-listed contractors
(1) The Authority shall keep and maintain a register of any suspended or de-listed contractors, which shall be available for access by the public.
(2) The Authority shall upon the suspension or de-listing of a contractor enter the name and particulars of the contractor, including a shareholder, director and key staff, in the register referred to in subregulation (1), for a period to be determined by the Authority.
169. Reinstatement of contractors
(1) The Authority shall, upon the lapse of a suspension or de-listing period remove a contractor from the register of suspended or de-listed contractors.
(2) A de-listed contractor may, where a period of de-listing lapses, apply in Form Y set out in Schedule 1, for the contractor to be removed from the register of suspended or de-listed contractor.
(3) The Authority shall remove a contractor from the register of suspended or de-listed contractors within 15 days of the application referred to in subregulation (2), unless the Authority is satisfied that the contractor has not complied with any terms and conditions for restoration in the Contractors’ Register in terms of these Regulations.
170. Appeal against decision to suspend or de-list
(1) A contractor who is aggrieved by a decision of the Authority to suspend or de-list the contractor may, within 14 days of the date of the decision, appeal against such decision to the Tribunal.
(2) A contractor may apply for a stay of a decision of the Authority referred to in subregulation (1) simultaneously with an appeal.
PART XVIII
Procedure for Lodging of Complaints and Appeals (regs 171-179)
171. Procedure for lodging of complaints
(1) A contractor aggrieved in terms of section 104 (2) may submit to an Accounting Officer, a complaint in Form Z set out in Schedule 1.
(2) An Accounting Officer shall, within five days after receipt of a complaint referred to in subregulation (1), notify any other contractor participating in a procurement process to which the complaint relates, of such complaint and the grounds of the complaint.
(3) Any contractor whose interest is or could be affected by the review proceedings under this regulation shall have the right to participate in such review proceedings.
172. Suspension of procurement process
(1) Where an Accounting Officer has suspended a procurement process in terms of section 107 of the Act, the Accounting Officer shall—
(a) notify the complainant and any other contractor participating in the procurement process related to the complaint, pending the consideration of such complaint by the Accounting Officer; and
(b) suspend the procurement process for a period not exceeding 20 days.
(2) Where the suspension in terms subregulation (1) exceeds 20 days, the complainant may refer the complaint to the Tribunal.
173. Consideration of complaints
(1) An Accounting Officer shall, in considering a complaint, examine or assess the—
(a) evidence including the information provided by the complainant; and
(b) information in the records kept by a procuring entity related to the complaint.
(2) Where two or more contractors from the same tender or procurement process lodge complaints, an Accounting Officer may consider the complaints simultaneously and respond to the respective contractors.
(3) A complainant shall, in terms of section 104(3) of the Act, participate in the review proceedings in person.
(4) The law relating to admissibility of evidence shall not apply to review proceedings under these Regulations.
(5) An Accounting Officer may engage an expert to assist the Accounting Officer in the review proceedings, where applicable, and the opinion of the expert shall not be binding on such Accounting Officer.
(1) A bidder shall have the right to a fair hearing in review proceedings under these Regulations.
(2) Where the decision of an Accounting Officer is likely to result in the revocation of an award, or cancellation or re-evaluation of a tender, the Accounting Officer shall invite a bidder to a hearing and such Accounting Officer shall inform the bidder of any observation made and the possibility of an error, if any, in the awarding of a tender.
(3) An Accounting Officer shall give a bidder a period of not more than three days after the review proceedings, to submit a response on the findings of the Accounting Officer and to show cause why, an award should not be revoked, or a tender cancelled or re-evaluated, or why any other justifiable decision should not be made.
175. Decisions of Accounting Officer
(1) An Accounting Officer shall, within 20 days after the review proceedings, make a written decision with respect to a complaint which shall indicate—
(a) whether the complaint is upheld in whole or in part, or is rejected or dismissed;
(b) the reasons or grounds for the decision; and
(c) any corrective measure that may be taken.
(2) An Accounting Officer shall, after the period referred to in subregulation (1), submit a decision to the complainant and any other contractor participating or who participated in a procurement process related to the review proceedings.
(3) A decision of an Accounting Officer shall be binding on the complainant and any other contractor participating or who participated in a procurement process related to the review proceedings.
176. Remedies by Accounting Officer
(1) An Accounting Officer shall, in determining the appropriate relief, consider all circumstances affecting the procurement process relating to the review proceedings.
(2) An Accounting Officer may—
(a) annul in whole or in part the act complained of;
(b) forward the complaint to a procurement oversight unit or order a re-evaluation of a procurement process or tender, or any other relevant remedy; or
(c) order that the procurement process related to the review proceedings be terminated.
177. Appointment of independent review panel
(1) An Accounting Officer shall, before appointing the members of an independent review panel in terms of section 110, ensure that such members are not involved in the procurement process related to the review proceedings.
(2) In appointing the members of an independent review panel, an Accounting Officer shall, in relation to a procurement process related to the review proceedings, take into account the relevant or appropriate qualifications and experience of such members.
(3) Where an Accounting Officer has appointed an independent review panel, the independent review panel shall review a complaint and advise the Accounting Officer on the relevant action to be taken within a period not exceeding 10 days from the date of receipt of the complaint.
178. Disclosure of interest and confidentiality by members of independent review panel
(1) Regulations 122 and 123 shall, with the necessary modifications, apply to the members of an independent review panel.
(2) A disclosure of interest by members of an independent review panel shall form part of a record of the review proceedings by the independent review panel.
(1) A complainant may, by notice in writing to an Accounting Officer, withdraw a complaint at any time before a decision on the complaint is made.
(2) An Accounting Officer may, upon receipt of a notice referred to in subregulation (1), deem the complaint to be withdrawn.
(3) Where a complaint is withdrawn, an Accounting Officer shall immediately inform the complainant and any other contractor participating in the procurement process related to the withdrawn complaint.
(4) An Accounting Officer may, where the withdrawal of a complaint relates to a suspended procurement process, lift the suspension of the procurement process.
(5) A withdrawal of a complaint shall not be conditional.
PART XIX
Fees (reg 180)
(1) There shall be payable to the Authority such fees for its services as the Authority may, with the approval of the Board, determine from time to time.
(2) The Authority shall by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish fees for any service rendered by the Authority.
(3) A fee paid for any assessment shall not be refundable.
Form A
(reg. 8(3))
Evaluation Report
Procuring entity’s name: ………………………………………………………………………………
Evaluation of tender no.: ……………………………………………………………………………….
Short title of what is being procured: ……………………………………………………………….
Scope of tender: ………………………………………………………………………………………..
This tender covers the design, supply, installation and commissioning/the purchase of ………………………….. the appointment of Consultant for ……………………..
a. Method of procurement (capture as per invitation to tender)
A formal open tender invitation was advertised in the local press and or international press; or
This was a selective/single sourcing tender restricted to suppliers/contractors/consultants
approved by the Accounting Officer/his or her representative on (date) ……………………………..
The pre-qualified consultant/suppliers/contractors are:
1. …………………………………………………………….
2. …………………………………………………………….
b. Tender closing date and bid validity
The closing date for submission of bid proposals was …………………………….. The tender validity period was …………………………….. from the closing date of the tender and therefore the bids expires on ……………………………..
c. Brief background
Give a short synopsis of the circumstances leading up to the purchase/construction, or appointment of consultant, or provision of service and the reason for the purchase.
This paragraph should convey to the reader the necessity for the purchase and benefits to the procuring entity (PE) arising from the procurement action. Wherever applicable a cost benefit analysis is to be included. At the very least the benefits to the PE should be detailed.
The constitution of the evaluation committee should be stated here. At least three officers should evaluate the tender in line with the Public Procurement Regulations.
d. Tenders received
Here should follow a summary of all tender proposals received. This may be stated in a few lines, under paragraph headings, or summarised in a table such as the example below. The choice of presentation lies with the author and it depends on the method of submission of tender responses. Bid Opening Forms should be appended appropriately.
The choice of format will depend on that which is necessary to achieve clarity, and in order to create a neat presentation.
e. Summary of Tendered Prices
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Tender No. |
Contractor/Supplier/ Consultant |
Tendered Price (PULA) |
Completion /Delivery Time (WEEKS) |
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f. Evaluation criteria as per ITT
A summary of the evaluation criteria as per the RFQ/ITT should be stated. An ITT or sections of it can be annexed to the evaluation report.
In this section a short paragraph explaining the evaluation process should be covered and the ITT/Evaluation Criteria attached to the report for further details where necessary.
g. Tender evaluation
Procedure: The number of those in the evaluation committee and their positions and names should be stated.
Results: A short synopsis of the evaluation of the quotations or tenders detailing the process followed as per the criteria in the ITT/RFQ, including factors considered, price comparisons, cut-off points, financial vs. technical weighting, criteria for compliance check etc., and the reasons for the selection of the recommended supplier(s). The evaluation should clearly detail the findings under each stage of evaluation as set in the ITT as follows:
Compliance Check
The basis of disqualification of each bidder should be stated and all those proceeding to the next stage of assessment indicated.
Technical Evaluation
The scores from each evaluator should be stated, summed and averaged as the ITT dictates. A summary of comments on each bidder should be done.
Financial Evaluation
In this section the tenders should be brought to a common base in Pula (where appropriate), and the rates of exchange used, the date and source are to be indicated. Rates used should be as per the requirement of the ITT. Tendered rates subject to foreign exchange adjustment should be adjusted to the rates prevailing at the time of tendering. Where applicable a comparison should be made with previous price(s) paid and comment made on whether the prices/price increases are considered fair and reasonable. In this section the evaluators should adjust tender prices where applicable applying price preferencing for purposes of comparison. Any arithmetical errors should be stated and the position taken.
Individual comments for each bidder should be consolidated into strengths and weaknesses of the bidder which constitute the findings of the evaluation Committee in addition to the scoring, Individual score sheets with annotations should be appended.
Conclusions: should be drawn which will lead up to the recommendation. In some instances it may be preferable to have the ANALYSIS and CONCLUSIONS under separate headings depending on the method of evaluation and what is procured. The basis of the recommendation should be in line with that under the ITT.
The report shall contain a statement of any disagreement and the reasons thereof further discussions held on the issue and the names of those holding alternative views. Where members of the Evaluation Committee disagree on the results of an evaluation, the findings and recommendations of the majority shall be stated in the evaluation report.
h. Recommendations
The recommendation will be similar to this:
It is recommended that the Accounting Officer make a decision (approve/reject/stand down/defer/etc.)
i. the opening of financial proposals from:
XYZ at a score of
ABC at a score of
DQL at a score of
As the bidders have met the cut-off point of …………………………….. as stipulated in the ITT.
ii. The return of unopened financial proposals from companies XYZ as they failed to meet the cut-off point by scoring below; or
iii. It is recommended that the Accounting Officer approve:
– the award of a contract for the supply/provision/construction of ……………………… to XYZ Company who submitted the lowest, technically acceptable tender or who scored the highest, at a total cost of P …………………. inclusive of ……………… taxes with a construction/delivery period of ……………………… weeks.
– The allocation of plots ……………………… measuring ……………………… for sale/lease on a ………………. year Fixed Period State Grant/lease at a purchase price/rental of …………………….. per annum to …………………….. who scores the highest.
“RECOMMENDATIONS should reflect the VALVE OF TENDER, RECOMMENDED TENDERER and DURATION OF DELIVERY OF THE WORKS/SERVICES/SUPPLIES.
i. Observations or opportunities for improvement
The report may contain general comments/observations that may be used for future improvements.
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Evaluator’s name |
Signature |
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Secretary’s name |
Signature |
Date |
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The evaluation report shall be signed by all members of the Evaluation Committee in attendance and so are the score sheets.
Here should be listed the Annexure to your report so that the Adjudicator knows where to look for them further information such as:
Annexure A; ITT
Annexure B: Bids/Proposals
Annexure C: Bid Opening Forms
Annexure D: Evaluation Minutes and Individual Annotated Score sheets
Annexure E: Funds Approval Form
Annexure F: Declaration of Interest Form
Annexure G: Confidentiality Form
Annexure H: Integrity Agreement Form
Annexure I: Certificate of Availability of Funds
These annexure should be properly referred to in the body of the report.
Form B
(reg. 31(2)(a))
List of Restricted Items
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S/No. |
Item |
Unit |
Procurement method |
Justification for use of classified procurement method |
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Name of procuring entity: ……………………………………………………………………………………………
Name of the Accounting Officer: …………………………………………………………………………………..
Sign: ………………………………………………………… Date: ………………………………………………….
Agreement by the Authority (Name): ……………………………………………………………………………..
Sign: ……………………………………………………..
Date: ……………………………………………………..
Form C
(reg. 31(2))
**Dates provided on the Procurement Plan are subject to review by the Procuring Entity
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Discipline |
Project Description |
Budget Amount BWP |
Estimated Cost BWP |
Method of procurement |
Preparation of ITT (incl. TORs & market research) |
Submission of ITT to POU for Vetting |
Date of intended publication of tender (where applicable) |
Issuing of invitation to tender |
Closing date for tenders |
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Supplies |
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Works |
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Evaluation of tender by Evaluation Committee |
Verification of Evaluation report by PU |
Submission of evaluation report to POU |
Pre-Adjudication by POU |
Award Decision by AO |
Cooling Off and Debriefing |
Contract Signing |
Commencement of project implementation |
Completion of project implementation |
End of Activity report |
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Form D
(reg. 37(1))
Procurement Requisition Form
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Name of procuring entity: |
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Name of user Department |
Budget year and date |
Sequence number |
Open commitment and control record |
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To Division |
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To Finance and Development Planning |
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Statement of procurement requirement |
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Item No. |
Description |
Quantity required |
Unit of measurement |
Estimated unit cost |
Estimated total cost |
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Funds Availability:
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Vote/Head No. |
Account |
Cost centre |
Project number |
Source of funds |
Balance remaining |
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Signatures are required below to certify that—
(a) the works, services or supplies described above are required and that the statement of requirements is accurate;
(b) approval is granted to proceed with the procurement; and
(c) funds are available or budgeted for the requirement.
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(1) Initiating Officer (user Department) |
(2) Confirmation of Funding (Head of Finance/ Planning) |
(3) Approval to Procure (Accounting Officer/ Delegated authority) |
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Comment: ……………………………………. ………………………………………… |
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Signature: ……………………………………. ………………………………………… |
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Name: ………………………………………… ………………………………………… |
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Position: ……………………………………… ………………………………………… |
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Date: ………………………………………….. ………………………………………… |
Form E
(reg. 39(1))
Availability of Funds
1. I ……………………………………………………………………………………………. the Accounting Officer for the …………………………………………………………………… (procuring entity) do hereby certify that funds amounting to (Currency & Amount) …………………………………………………………………… (amount in words ………………………………………………………………………) required for the procurement activity stated in paragraph 3 below are available by virtue of having been provided for in the:
1.1 Approved budget for the financial year ………………………. /……………………….;
1.2 Confirmation of availability of funds: YES/NO; or
1.3 Confirmation of availability of funds in Future (where there are no/insufficient/additional funds): Date ………………………
2. Type of source of funds: recurrent/development/donation/public private partnerships (delete what is not applicable) as evidenced by the attached statement of the Accounting Officer.
3. Description of procurement: ……………………………………………………………………………………………
………………………………………………………………………………………………………………………………..
4. The above stated funds are available to finance the procurement of works/services/supplies (delete what is not applicable) whose purpose is …………….
………………………………………………………………………………………………………………………………..
………………………………………………………………………………………………………………………………..
………………………………………………………………………………………………………………………………..
5. Cost centre ………………………………………………………………………………………………………………..
6. Organisation and account code ……………………………………………………………………………………….
Funds CONFIRMED by finance officer/planning officer:
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…………………………………. |
…………………………………… |
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Name |
Signature |
Date |
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APPROVAL by the Accounting Officer (or delegated authority) |
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This …………………………………………………. day of ……………………………………… 20……………. |
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…………………………………………………… |
…………………………………… |
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Name |
Signature |
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Designation: …………………………………………………………………………………………………………… |
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OFFICIAL STAMP:
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Form F
(reg. 44(2)(e))
Integrity Agreement
Declaration on Ethical Conduct, Fraud and Corruption (applicable to the Bidders)
1. Pursuant to section 56(2) and (3) of the Act, a bidder shall complete and submit this form with a bid.
2. We the undersigned confirm the following in the preparation of our bid:
a. neither we, nor any of our employees, associates, agents, shareholders, consultants, partners, beneficial owners or associates have any relationship that could be regarded as a conflict of interest as set out in the bidding documents;
b. should we become aware of the potential for such a conflict, we will report it immediately to the procuring entity;
c. that neither we, nor any of our employees, associates, agents, shareholders, partners, beneficial owners, consultants or associates have entered into corrupt, fraudulent, coercive or collusive practices in respect of our bid or proposal; and
d. that no payments in connection with this procurement exercise have been made by us or our associates, agents, shareholders, partners, beneficial owners or associates to any of the staff, associates, consultants, employees or immediate family members of such who are involved with the procurement process on behalf of the Procuring Entity, Client or Employer.
3. We understand our obligation to allow the Government including the procuring entity and Authority to inspect all records relating to the preparation of our bid and any contract that may result from such, irrespective of whether we are awarded a tender or not.
4. In case of a successful bid, should we be found to be in breach of the integrity agreement, the procuring entity has the right to cancel the procurement including termination of any resulting contract at no cost or legal obligation on her part.
Authorised signature: ………………………………………………………………………………………..
Name and title of signatory: ………………………………………………………………………………..
Name of bidder: ……………………………………………………………………………………………….
Date: …………………………………………………………………………………………………………….
Address: ………………………………………………………………………………………………………..
Phone number: ………………………………………………………………………………………………..
Fax number: ……………………………………………………………………………………………………
Email address: …………………………………………………………………………………………………
Form G
(reg. 50(7)(a)(i))
Record of Bid Opening – Single Envelope or Package
Procuring entity: ………………………………….
User Department: ………………………………..
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Tender number: |
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Tender title: |
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Closing date: |
Day |
Month |
Year |
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Closing time: |
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<PW:Popup,2.34375,1.5625,Popup>Bids/quotes received shall be numbered accordingly1Bid No. |
<PW:Popup,2.34375,1.5625,Popup>Names in full of all the bids received2Name of bidder |
<PW:Popup,2.34375,1.5625,Popup>Number of copies received from each; O indicates Original and C indicates Copies3No. of copies |
<PW:Popup,2.34375,1.5625,Popup>The currency of the quoted amount4Currency |
<PW:Popup,2.34375,1.5625,Popup>Lump sum value of works/services/supplies where applicable5Bid amount/rate |
<PW:Popup,2.34375,1.5625,Popup>Record any other items submitted as per the tender requirement6Other items submitted |
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We certify that:
a. bids as noted in the above list and no others were received as per the stipulated time in the invitation to tender; and
b. such bids were opened in our presence and marked appropriately by us on …../…. /20….
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Department/Unit |
Full names of officers present |
Signature |
<PW:Popup,2.34375,1.5625,Popup>Official title of the participating personnel7Designation |
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Form H
(reg. 50(7)(a)(ii))
Record of Technical Proposal Opening – Dual Envelope or Package
Procuring entity: ………………………………………………………………………………….
User Department: ………………………………………………………………………………..
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Tender number: |
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Tender title: |
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Closing date: |
Day |
Month |
Year |
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Closing time: |
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<PW:Popup,2.34375,1.5625,Popup>Bids/quotes received shall be numbered accordingly8Bid No. |
<PW:Popup,2.34375,1.5625,Popup>Names in full of all the bids received9Name of bidder |
<PW:Popup,2.34375,1.5625,Popup>Number of copies received from each; O indicates Original and C indicates Copies10No. of copies |
<PW:Popup,2.34375,1.5625,Popup>Indicate with a ‘Yes’ or ‘No’ for Financial bid submitted11Finacial bid submitted |
<PW:Popup,2.34375,1.5625,Popup>Record any other items submitted as per the tender requirement12Other items submitted |
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C |
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We certify that:
a. bids as noted in the above list and no others were received as per the stipulated time in the invitation to tender; and
b. such bids were opened in our presence and marked appropriately by us on …………/…. /20….
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Department/Unit |
Full names of officers present |
Signature |
<PW:Popup,2.34375,1.5625,Popup>Official title of the participating personnel13Designation |
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Form I
(reg. 50(7)(a)(iii))
Record of Financial Opening – Dual Envelope or Package
Procuring entity: …………………………………………
User Department: ……………………………………….
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Tender number: |
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Tender title: |
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Closing date: |
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Month |
Year |
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Closing time: |
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<PW:Popup,2.34375,1.5625,Popup>Bids/quotes received shall be numbered accordingly14Bid No. |
<PW:Popup,2.34375,1.5625,Popup>Names in full of all the bids received15Name of bidder |
<PW:Popup,2.34375,1.5625,Popup>Number of copies received from each; O indicates Original and C indicates Copies “Record any other items submitted as per the tender requirement16No. of copies |
Bid amount/rate |
<PW:Popup,4.47917,1.5625,Popup>Record any other items submitted as per the tender requirement17Other items submitted |
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We certify that:
a. bids as noted in the above list and no others were received as per the stipulated time in the invitation to tender; and
b. such bids were opened in our presence and marked appropriately by us on ……………./…………. /20……
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Department/Unit |
Full names of officers present |
Signature |
<PW:Popup,2.34375,1.5625,Popup>Official title of the participating personnel18Designation |
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Form J
(reg. 80(1))
Application for Deviation from Use of a Procurement Method
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Reference number |
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Name of procuring entity |
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Name of applicant |
Signature |
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Designation |
Date |
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Project title |
Location |
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Nature of requested deviation (person, procurement activity, procuring entity) |
Estimated value |
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Exemption required for, and justification |
Single procurement ……………… Multiple procurement ……………. Period ……………… |
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Record of previous exemption to the current procurement (if any) |
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Extent of non-compliance-how the deviation will be managed to prevent a compromise in the process: |
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Relevant supporting documents (Attach) |
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Decision by Minister |
Approved: Not approved: Date: Signature: |
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If approved – date exemption period ends: |
Indicate any conditions attached: |
Form K
(reg. 82(1))
Application to Use Alternative Procurement Process
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Reference number |
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Name of procuring entity |
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Name of applicant |
Signature |
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Designation |
Date |
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Project title |
Location |
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Basis of alternative procurement process required (international agreement or external obligation) |
Estimated value |
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Nature of alternative procurement process (use of SPB, application of the Act, etc.) |
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Alternative procurement process required for, and justification – |
Single procurement ……….. Multiple procurement ……… Period ……… |
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Record of previous alternative procurement processes to the current project (if any) |
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Extent of non-compliance – how the alternative procurement process will be managed to prevent a compromise in such procurement process: |
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Relevant supporting documents (attach) |
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Decision by Authority |
Approved: Not approved: Date: Signature: |
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If approved – date the alternative procurement process period ends: |
Indicate any conditions attached: |
Form L
(reg. 83(1))
Request for Retroactive Approval
Procuring entity:
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Part A: To be completed by user Department |
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Department |
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Project No. or title: |
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Date procurement undertaken: |
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Brief procurement description: |
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Planned or unplanned (was the procurement part of the Annual Procurement Plan): |
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Reasons for retroactive procurement: |
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Retroactive amount required for approval (Pula): |
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Availability of funds: (attach proof of availability of funds) |
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Proposed future corrective measures: |
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Accountable project officer: |
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Name: Sign: |
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Date: |
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Head of user Department: |
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Name: Sign: |
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Date: |
Comments and recommendation by head of user Department: |
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Part B: To be completed by the procurement unit |
Comments and recommendation by procurement unit: |
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Assessing officer (head of procurement unit): |
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Name: Signature: |
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Date: |
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Part C. To be completed by the procurement oversight unit |
Comments and recommendation by procurement oversight unit: |
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Head of procurement oversight unit: |
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Name: Sign: |
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Date: |
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Part D. To be completed by the Accounting Officer |
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Name: Sign: Date: |
Decision by the Accounting Officer: |
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Administrative action by Accounting Officer: |
Form M
(reg. 96(1))
Declaration of Beneficial Owners
Declaration to establish beneficial owners of a citizen owned contractor or a joint venture with a non-citizen owned contractor
1. Declaration to establish eligibility for reservation and price preferences for citizen contractor and any other entity.
2. The declaration shall be signed by all contractors tendering for reserved contracts and contracts subject to preferences as a condition of each tender.
3. Definition—
The following definitions shall apply to this declaration:
a. citizen Contractor: a natural person or an incorporated company wholly owned and controlled by persons who are citizens of Botswana;
b. control: the possession and exercise of legal authority and power to manage the assets, goodwill and daily operations of a business and the active and continuous exercise of managerial and financial authority and power in determining the policies and directing the operations of the business;
c. beneficial Owner: means a natural person, who directly or indirectly through any contract, arrangement, understanding, relationship or otherwise—
(i) in relation to an incorporated body, ultimately owns or has a controlling ownership or exercises ultimate effective control through positions held in the incorporated body or is the ultimate beneficiary of a share or other securities in the body corporate,
(ii) in relation to a trust or other legal arrangement, is the settlor, trustee or ultimate beneficiary of the trust or legal arrangement or has the power, alone or jointly with another person or with the consent of another person, to—
• dispose of, advance, lend, invest, pay or apply trust property or property of the legal arrangement,
• vary or terminate the trust or legal arrangement,
• add or remove a person as a beneficiary or to or from a class of beneficiaries,
• appoint or remove a trustee or give another person control over the trust or legal arrangement, or
• direct, withhold consent or to overrule the exercise of a power referred to in subparagraphs (i)-(iv),
(iii) is the ultimate beneficiary of proceeds of a life insurance policy or other related investment services when an insured event covered by the policy occurs, or
(iv) a transaction is conducted on his or her behalf;
d. net amount: the financial value of the Contract at the time of the award of the Contract, exclusive of sales tax which the law requires the Employer to pay to the Contractor; and
e. owned: Having all the customary incidents of ownership, including the right of disposition, and sharing in all the risks and profits commensurate with the degree of ownership interest or shareholding as demonstrated by an examination of the substance as well as the form of ownership arrangements.
4. The company operates banking and savings accounts, and the only authorised signatories are:
i. …………………………………………………………………………………………………………………..
…………………………………………………………………………………………………………………..
(Bank name and name of signatory) (Omang No./Passport)
ii. …………………………………………………………………………………………………………………..
…………………………………………………………………………………………………………………..
(Bank name and name of signatory) (Omang No. Passport)
iii. …………………………………………………………………………………………………………………..
…………………………………………………………………………………………………………………..
(Bank name and name of signatory) (Omang No./Passport)
iv. …………………………………………………………………………………………………………………..
…………………………………………………………………………………………………………………..
(Bank name and name of signatory) (Omang No./Passport)
5. I hereby provide a current list of beneficial owners for the company/partnership/society/joint venture/private foundation/statutory body, or any other (please specify)
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List of beneficial owners |
Capacity in company |
Nationality |
Percentage |
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1 |
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2 |
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3 |
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4 |
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5 |
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6 |
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6. Undertakings:
The tenderer confirms that it is a citizen contractor and undertakes to remain a citizen contractor for the duration of the contract. I acknowledge that if after the award of this tender any of these declarations are found to be false then any contract(s) between ourselves and the procuring entity shall be terminated immediately and we may be barred from future tendering for Government services and liable to possible prosecution.
7. Sanctions relating to reserved treatment:
Any changes in ownership or control which violate the definition of a citizen contractor shall be sufficient reason for the procuring entity to terminate the contract.
8. All the beneficial owners, partners/directors/shareholders and Administrators of …………………………………………………………. (name of company) have read this declaration and agree to its contents:
a. All the Beneficial owners, partners/directors/shareholders and Administrators hereby give consent and verification of the information provided above and understand that this may include but is not limited to the verification of assets, liabilities, accounts, bonds and undertake to notify the competent authorities of any change to the information provided in this declaration within seven days of such occurrence; and
b. I understand and declare that each matter here deposed to is essential for the tender validity of ……………………… (name of company)
NB: The procuring entity reserves the right to confirm the authenticity of the information provided above.
THUS SIGNED AND SWORN TO BEFORE ME COMMISSIONER OF OATHS AT …………………………………… ON THIS ………………… DAY OF …………………………… 20……, AT ………AM/PM, THE DEPONENT HAVING ACKNOWLEDGED THAT HE KNOWS AND UNDERSTANDS THE CONTENTS OF THIS DECLARATION AND THAT IT IS BINDING ON HIS CONSCIENCE.
……………………………………………………………..
COMMISSIONER OF OATHS CAPACITY:
Form N
(reg. 99(2)(k))
End of Activity Report
All Procuring Entities shall submit to the Authority, in respect of each bid, an end of activity report not later than the date of final payment to the contractor.
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1. Bidding Data |
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Tender number: |
Tender title: |
Method of procurement: (open, restricted, direct etc.) |
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Date of publication: |
Tender closing date: |
Closing date extensions (if any) and reason(s): |
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2. Contract Details |
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Procuring entity |
User Department |
Contract number |
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Contract title/ name: |
Procurement category (works/services/ supplies/PPP) |
Project performance |
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Contract type: (lump sum, unit rate or Time-based etc.) |
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Scope<PW:Popup,2.34375,1.5625,Popup>Indicate whether the contract was completed as awarded, whether there was additional or reduced work (change of scope). If there were changes in scope or additional orders then list the respective contract addenda and complete a separate form for each addendum.1: No change/change Cost: within/outside Time: within/outside |
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Contractor name; Sub-contractor/s name/s<PW:Popup,5.72917,1.5625,Popup>Where sub-contractors are involved then list them here and complete a separate form for each sub-contractor.2: |
Contract award date Conditions for contract effectiveness (if any): e.g. site hand-over, submission of performance security, advance payment etc. |
Contract date Contract effective date |
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Contract original description (brief description of works/services/supplies/PPP) |
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Contract final description (brief description of works/services/supplies/PPP at completion or termination of the contract) |
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3. Cost Details |
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Estimated contract cost (as per the procurement plan) |
Original contract award amount |
Variations if any |
Causes of variations |
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Final contract amount at completion |
Additional payments on contract price (if any) |
Planned contract completion date |
Actual contract end date |
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4. Performance Details |
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Performance indicators for contractor a. Adherence to Technical Spec’s/Drawings/TOR b. Delivery as per contract terms c. Changes in contract costs d. Changes in contract Scope (contract addenda) e. Adequate reporting and contractual relationships and qualified contractor’s personnel f. any other |
Performance achievement Extent of Contractor’s achievement against Performance Indicators a. Quality Levels (as per Tech’l Specs/Drawings/Terms of reference); select one of: Poor/Satisfactory/Excellent b. Delivery as per contract deadlines; select one of; On-time/excusable delay/ non-excusable delay c. Cost Over-runs: select one of: inflation-related, design problems, supervision problems, force majeure d. Changes in contract scope: select one or more of: design problems, additional requirements, need to upgrade spec’s of materials or equipment d. Quality of Progress Reports/Monthly statements and other Contractual dealings and Communications: select one of: Poor/Satisfactory/Excellent |
Sources of performance variation (Give further Explanations for deviations, if any, from stipulated contract performance indicators. Indicate if such variations were caused by the Contractor, the PE or any other reason) |
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Overall performance score of the contractor with justifications: (excellent/ good/satisfactory/poor) |
Corrective measures taken (Action taken by a procuring entity and attach copies of correspondences) (Indicate claims if any) |
Further action recommendation (Recommendation by a procuring entity) |
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Other comments (e.g. Unethical behaviour: excessive claims, unauthorised changes in key personnel by a contractor etc.) |
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Prepared by: contract manager |
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Name |
Signature |
Date |
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Approved by: Accounting Officer |
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Signature |
Date |
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5. PPRA OFFICIAL USE ONLY |
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Authority’s report analysis |
Further action |
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Authority’s decision |
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NOTE:
1. Accounting Officers to ensure that project officers being transferred complete this form as interim activity report.
2. All procuring entities shall also use this form for reporting interim activity reports on all projects.
Form O
(reg. 122(1))
Declaration of Interest
Name: ………………………………………………………………………………………………………………………
Position held in organisation: ………………………………………………………………………………………….
a. Nature of interest Tick as appropriate:
i. ALREADY HAS PERSONAL INTEREST: <OB:FO:”squrebsi001of2015.JPG”,0.239583,0.229167
ii. INTEND TO ACQUIRE PERSONAL INTEREST: <OB:FO:”squrebsi001of2015.JPG”,0.239583,0.229167
iii. INDICATE TYPE OF INTEREST (direct or indirect): …………………………………………..
b. Name of company/firm/entity: …………………………………………………………………………….
c. Type of business relationship:
DIRECTOR: <OB:FO:”squrebsi001of2015.JPG”,0.239583,0.229167
SHAREHOLDER: <OB:FO:”squrebsi001of2015.JPG”,0.239583,0.229167
AGENT: <OB:FO:”squrebsi001of2015.JPG”,0.239583,0.229167
OTHER: <OB:FO:”squrebsi001of2015.JPG”,0.239583,0.229167
For “other”, give reasons:
d. Tender No. and title:
e. Description of procurement activity:
f. Recusal from adjudicating, evaluating, advising, handling or otherwise dealing with matter or attendance of a meeting when the procurement activity or tender was discussed?
If yes, give reasons: ……………………………………………………………………………………..
g. Date of assignment on the matter or of a meeting when the procurement activity or tender was discussed:
…………………………………………………………………………………………………………………
Signature (Declarant): …………………………………………………..
Date: ………………………………………………………………………..
Decision by Accounting Officer/authorised officer: ………………………………………..
Important definitions
Direct interest- where a member or employee of a public body or the immediate member of the family of the employee of a public body; holds position in, is an employee of, is a shareholder in or gives services for remuneration or reward to a company which is the subject of the interest.
Immediate member of family- means spouse, son, daughter, sibling, or parent of the member of employee of a public body.
Indirect interest- means an employee, agent, or nominee of a member or employee of a public body or his or her immediate member of family has a direct interest in a company.
NOTE: The above definitions are given merely as a necessary guide from the Corruption and Economic Crime Act (Cap. 08:05), as amended. Members, Directors and employees are encouraged to always exercise caution and make appropriate declarations of interest even in circumstances where they have family relations that do not strictly fall within the definitions provided above.
Form P
(reg. 123(2))
Confidentiality Relating to Procurement Process
Name of declarant: ……………………………………………………………………………………………..
Identification document and number: Omang/Passport: ………………………………………………..
Position held in Organisation: ………………………………………………………………………………..
I, the undersigned hereby declare that—
1. I am aware of my obligation to abide by the requirements of confidentiality.
2 I know that I am obliged not to divulge any confidential information acquired by myself, or that came to my attention, by virtue of my involvement in any procurement process which is not publicly available.
3. I shall also respect the confidential nature of the opinions expressed in any procurement process I am involved in.
4. I undertake not to disclose such information even after my participation or association with the procurement process has ceased.
5. Should I receive confidential information in the course and context of my procurement process, I shall treat such information under conditions of strict confidentiality, and exclusively use it for the purpose for which it was made available to me and I shall not divulge to any third party.
6. The above implies that I the undersigned:
a. will not divulge, publish or otherwise make available to any third party information received during a procurement process, without prior written consent of an Accounting Officer or the Authority as applicable, during or after participation in the work of a procuring entity;
b. will not use information received during a procurement process for personal benefit or that of any third party;
c. will ensure safe storage of the confidential information and restricted information in my possession (physical and knowledge), applying appropriate security the information is managed electronically and not retain the information for longer than needed for the completion of the assignment or procurement process; and
d. further that any unauthorised disclosure of confidential or restricted information in my knowledge or possession shall constitute a breach of this undertaking and may result in me being administratively sanctioned or prosecuted for such unauthorised disclosure.
7. Notwithstanding anything to the contrary, herein stated, confidential information may be disclosed by operation of the law.
DONE at ……………………… on the ………….. of ………….. 20………
Signature: ………………………………………
Form Q
(reg. 137(3))
Request for Change of Particulars of Contractor in Contractors’ Register
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Nature of change: |
Selection (X) |
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1. Ceasing to operate (closing business, etc.) |
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2. Change of information (shareholding/ directorship/ownership) |
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3. Place of operation |
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4. Change of key personnel (employee) |
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5. Change of mandatory requirements (equipment/plant/machinery, etc.) |
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Date of change of contractor’s particulars: ………………………….
Reasons of change: ………………………………………………………………………………………………….
…………………………………………………………………………………………………………………………….
…………………………………………………………………………………………………………………………….
…………………………………………………………………………
………… OFFICE USE …………
Authority: impact of change on the company codes status
DECISION: ………………………………………………………….
Form R
(reg. 139(1))
Application for Registration in Contractors’ Register
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COMPANY DETAILS |
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Legal Entity: |
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Unique Identification Number (UIN): |
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Directors: |
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Shareholders: |
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Phone/Mobile number: |
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Email address: |
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DISCIPLINE:
TYPE OF APPLICATION: NEW
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LIST OF CODES/SUBCODE APPLIED |
SUPPORTING DOCUMENTS:
APPLICATION SUBMISSION AND ASSESSMENT FEES:
….. OFFICE USE …….
DATE RECEIVED ………
APPLICATION STATUS: …..
Form S
(reg. 145(1))
Application for Upgrade of Contractor
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COMPANY DETAILS: |
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Company name: |
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Unique Identification Number(UIN) |
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Phone/Mobile number: |
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Email address |
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Current codes/subcode for upgrade |
Codes to be upgrade to |
Reasons or justifications |
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Provide attachments
Submit
………. OFFICIAL USE ……….
Form T
(reg. 145(1))
Application for Downgrade to Contractor
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COMPANY DETAILS: |
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Company name: |
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Unique Identification Number(UIN) |
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Phone/Mobile number: |
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Email address |
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Current codes/subcode for downgrade |
Codes to be downgrade to |
Reasons or justifications |
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Provide attachments
Submit
………. OFFICIAL USE ……….
Form U
(reg. 150(1))
Application for Restoration of Contractor’s Name in the Contractors’ Register
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ENTITY DETAILS: |
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Entity name: |
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Unique Identification Number (UIN): |
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Phone/Mobile number: |
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Email address: |
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Reason(s) for removal from Contractors’ Register:
…………………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………………
Provide attachments
Submit
………. OFFICIAL USE ……….
Action officer:
Name: …………………………………………………………
Designation: ………………………………………………….
Date: …………………………………………………………..
Decision:
Approve/Reject/Defer
Form V
(reg. 154)
Application for Renewal of Certificate of Registration
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COMPANY DETAILS |
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Legal Entity Name: |
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Unique Identification Number (UIN): |
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Directors: |
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Shareholders: |
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Phone/Mobile number: |
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E-mail address: |
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LIST OF CODES/SUBCODE APPLIED FOR RENEWAL |
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SUPPORTING DOCUMENTS:
APPLICATION SUBMISSION AND ASSESSMENT FEES:
………. OFFICIAL USE ……….
DATE RECEIVED ………….
APPLICATION STATUS: ………….
Form W
(reg. 162(1))
SUBMISSION OF ALLEGATIONS TO AUTHORITY (for reporting of an allegation of any conduct of a contractor which contravenes the code of conduct set out in Schedule 3)
Date: DD/MM/YYYY
1. Details of the Informer:
Name of Company, firm or any other: ………………………………………………………………………………
Postal address: ………………………………………………………………………………………………………..
Physical address: ………………………………………………………………………………………………………
City/Town/Village: ………………………………………………………………………………………………………
Telephone number: …………………………………………………………………………………………………….
Mobile telephone number: ……………………………………………………………………………………………
E-mail address: ………………………………………………………………………………………………………..
2. Details of Defaulting Contractor (as applicable)
Name: ……………………………………………………………………………………………………………………
Postal address: ……………………………………………………………………………………………………….
Physical address: …………………………………………………………………………………………………….
Telephone number: ……………………………………………………………………………………………………
Reference/Tender number (where applicable): ………………………………………………………………….
Subject matter (Title of tender etc.)
……………………………………………………………………………………………………………………………..
……………………………………………………………………………………………………………………………..
Approximate value of tender (where applicable): ………………………………………………………………..
3. Timelines
……………………………………………………………………………………………………………………………..
Date of breach (if applicable):
4. Description of alleged breach
……………………………………………………………………………………………………………………………..
……………………………………………………………………………………………………………………………..
5. Documents submitted in support of allegation (where applicable)
……………………………………………………………………………………………………………………………..
……………………………………………………………………………………………………………………………..
Form X
(reg. 169(2))
Application to be Removed from Register of Suspended or De-listed Contractors
Regulation 177(1) and Regulation 197(2)
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LEGAL ENTITY DETAILS |
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Entity Name: |
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Unique Identification Number (UIN): |
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Phone/Mobile number: |
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Email address: |
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REASON(S) FOR REMOVAL:
……………………………………………………………………………………………………………………………..
……………………………………………………………………………………………………………………………..
……………………………………………………………………………………………………………………………..
PROVIDE ATTACHMENTS
SUBMIT
………. OFFICIAL USE ……….
ACTION OFFICER: ………………………………………..
NAME: ……………………………………………………….
DESIGNATION: …………………………………………….
DATE: ……………………………
DECISION:
Approve/Reject/Defer
Form Y
(reg. 171(1))
Lodging of Complaints
Date: DD/MM/YYYY
1. Details of the complainant:
Name of company, firm or any other: ……………………………………………………………………………
Postal address: ………………………………………………………………………………………………………
Physical address: ……………………………………………………………………………………………………
City/Town/Village: ……………………………………………………………………………………………………
Telephone number: …………………………………………………………………………………………………..
Mobile telephone number: ………………………………………………………………………………………….
E-mail address: …………………………………………………………………………………………………………
Status of complainant (prospective bidder/actual bidder) ……………………………………………………..
2. Details of respondent (procuring entity/Authority)
Name of procuring entity: …………………………………………………………………………………………..
Postal address: ……………………………………………………………………………………………………….
Physical address: …………………………………………………………………………………………………….
Telephone number: ……………………………………………………………………………………………………
Reference/Tender number: ………………………………………………………………………………………….
…………………………………………………………………………………………………………………………….
…………………………………………………………………………………………………………………………………
Subject matter (Title of tender etc.)
Bid value of tender (where applicable): ……………………………………………………………………………
3. Timelines
Date contract awarded (if applicable):
Date decision complained of was made or supposed to be made by Accounting Officer/Authority (if applicable): ……………………………………………………
4. Description of complaint detailing the provision(s) of the Act or Regulations that have been breached and how they have been breached
……………………………………………………………………………………………………………………………….
……………………………………………………………………………………………………………………………….
……………………………………………………………………………………………………………………………….
5. The loss or injury to be/or likely to be suffered ……………………………………………………………..
……………………………………………………………………………………………………………………………….
……………………………………………………………………………………………………………………………….
6. Remedies being sought ……………………………………………………………………………………………..
……………………………………………………………………………………………………………………………….
……………………………………………………………………………………………………………………………….
7. Statement of what complainant thinks would be a reasonable solution to the complaint
8. Documents submitted in support of complaint:
Signed by
…………………………………………………………………………………………………………………………………..
Company date stamp:
Signature of the
Complainant
For OFFICIAL USE only:
Received by: …………………..
(Procuring entity/Authority)
Procuring entity/Authority’s date stamp:
(regs. 131(8), 137(3), 139(1), 145(1), 150(1) and 154)
Contractor Registration Fees
Works Assessment Fees
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Charge (Pula) |
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Contractor registration |
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OC |
300 |
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A |
600 |
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B |
900 |
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C – 100% Citizen |
1 500 |
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C – Majority Citizen |
1 800 |
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D – 100% Citizen |
2 250 |
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D – Majority Citizen |
3 000 |
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D – Minority Citizen |
4 500 |
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E – 100% Citizen |
3 000 |
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E – Majority Citizen |
4 500 |
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E – Minority Citizen |
6 000 |
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E – 100% Foreign |
9 000 |
Service and Suppliers Assessment Fees
Services and Suppliers Charge (Pula)Per Sub-Code
• Normal application submission fee: P200 for both citizen and non-citizen.
• Express application submission fee: P5000.
• Annual subscription fee: P200.
• Penalty fees for failure to submit, information changes: P5000.
• 100% citizen youth owned contractors (18 years to below 36 years old), will be charged at 50% per sub-code.
SCHEDULE 3
CODE OF CONDUCT OF CONTRACTORS
(regs. 102(8)(b), 149(1)(g), 157(1)(a)(i), 160(a) and 162(1), (2))
1. GENERAL
1.1. A contractor shall ensure that a competent person carries out the contractual obligations of the contractor.
1.2 A contractor shall ensure that certified copies of all mandatory certificates, professional qualifications, accreditation and affiliation of employees are kept in the office and shall be made available to the Authority immediately upon request.
1.3 A contractor shall ensure that all relevant requirements are provided for in the procurement documents, that services and products are delivered on time in line with the procurement documents or service requirements.
2. DISCLOSURE OF INFORMATION
2.1 A contractor shall not disclose information acquired from or through its association or relationship with the Authority or its committees, a Government department or agency, which has not been made public on a potential or current service provider for the contractor’s advantage, material gain and advancement.
2.2 A contractor, shall not use its, or his or her association or relationship (other than as allowed in the association agreement) with the Authority or its committees, or Government departments or agency for the contractor’s advantage, material gain or advancement.
3. COLLUSION AND FRONTING
3.1 A contractor shall not manipulate his or her true shareholding; directorship, management, employees or financial resources in order to be compliant with the requirements of section 95 of the Act regarding classification of contractors in terms of ownership, etc.
3.2 A contractor shall not be involved in fronting, tokenism and window dressing practices during the tendering stage or while seeking registration into the register of contractors, under section 91 of the Act; for purposes of this code, the terms “fronting”, “tokenism” and “window dressing mean the misrepresentation of a material fact of the ownership, management and control, as .well as the skilled and specialist positions: of existence of a contractor in order to appear compliant with citizen reservation and citizen preferential treatment and for material gain, advancement of advantage in the procurement process.
3.3 A contractor shall not sublet or sub-contract without declaration at tender stage a disproportionate amount of works, or the core aspect of the assignment to a contractor who does not qualify for reservation or preferential treatment. This may also take the form of utilising the resources which include, equipment, facilities, material, financial, etc., of a contractor who does not qualify for reservation or preferential treatment. In this regard the true material benefit and advancement does not meaningfully and tangibly accrue to the contractor the due reservation or preferential treatment.
3.4 A contractor shall not have a prevalence of non-executive directors or tokenism whose qualification and experience does not correlate to the core business of the contractor. Passive ownership of an entity can also lead to some form of fronting.
3.5 A contractor shall not engage in any collusive practices that have a direct or indirect impact on the cost of engagement to the procuring entities.
3.6 A contractor shall not engage in any activity that gives one bidder an improper and unethical advantage over other bidders.
4. PROFESSIONAL CONDUCT AND INTEGRITY
4.1 A contractor shall not submit false information or falsified documents to the Authority in order to influence the decision of the Authority to register such contractor in the register of contractors under section 91 of the Act.
4.2 A contractor shall not submit false information or falsified documents during the tendering process in order to deceive a procuring entity or clients into believing that the contractor has capabilities and capacities to perform contracts which the contractor is not capable of doing by—
4.2.1 Unauthorised use of one’s name or using the name of another for purpose of public bidding.
4.2.2 Withdrawal of a bid, or refusal to accept an award, or enter into contract with the government without justifiable cause, after he or she had been adjudged as having submitted the lowest calculated responsive bid or highest rated responsive bid.
4.2.3 Refusal or failure to post the required performance security within the prescribed time.
4.2.4 Refusal to clarify or validate in writing its bid during post qualification within a period of seven days from receipt of the request for clarification.
4.2.5 Any attempt by a bidder to unduly influence the outcome of the bidding in his or her favour.
4.2.6 All other acts that tend to defeat the purpose of the competitive bidding, such as but not limited to contractors withdrawing from bidding or submitting letters of non-participation except for valid reasons.
4.2.7 Failure of the contractor, solely due to his or her fault or negligence, to mobilise and start work or performance within the specified period in the Notice to Proceed (“NTP”).
4.2.8 Failure by the contractor to comply with its contractual obligations without valid cause, or failure by the contractor to comply with any written lawful instruction of the procuring entity or its representative(s) pursuant to the implementation of the contract. Lawful instructions include but are not limited to the following—
a. Employment of competent technical personnel and/or work supervisors,
b. Compliance to safety, health and environment requirements,
c. Stockpiling in proper places of all materials and removal from the project site of waste and excess materials, including broken pavement and excavated debris in accordance with approved plans and specifications and contract provisions,
d. Deployment of committed equipment, facilities, support staff and manpower, and
e. Renewal of the effective dates of the performance security after its expiration during the course of contract implementation.
4.2.9 Assignment and subcontracting of the contract or any part of the contract or substitution of key personnel named in the proposal without prior written approval by the procuring entity.
4.2.10 For the procurement of goods, unsatisfactory progress in the delivery of the goods by the manufacturer, supplier or distributor arising from his or her fault or negligence, or unsatisfactory or inferior quality of goods, as may be provided in the contract.
4.2.11 For the procurement of consulting services, poor performance by the consultant of his or her services arising from his fault or negligence. Any of the following acts by the consultant shall be construed as poor performance—
a. Defective design resulting in substantial corrective works in design or construction;
b. Failure to deliver critical outputs due to consultant’s fault or negligence;
c. Specifying materials which are inappropriate, substandard, or way above acceptable standards; and
d. Allowing defective workmanship or works by the contractor being supervised by the consultant.
4.2.12 For the procurement of infrastructure projects, poor performance by the contractor or unsatisfactory quality or progress of work arising from his or her fault or negligence as reflected in the Contractor’s Performance Evaluation System (“CPES”) rating sheet. In the absence of the CPES rating sheet, the existing performance monitoring system of the procuring entity shall be applied. Any of the following acts by the contractor shall be construed as poor performance—
a. Negative slippage of 15 per cent and above within the critical path of the project due entirely to the fault or negligence of the contractor; and
b. Quality of materials and workmanship not complying with the approved specifications arising from the contractor’s fault or negligence.
4.2.13 Wilful or deliberate abandonment or non-performance of the project or contract by the contractor resulting to substantial breach of the contract without lawful or just cause.
4.2.14 Submission of bids that contain false information or falsified documents, or the concealment of such information in the bids in order to influence the outcome of eligibility screening or any other stage of the public bidding.
4.2.15 Submitting the educational qualification documents and references of persons whom the contractor purports to be his or her employees when they are not, or without such persons’ consent to the Authority or its committees.
4.2:16 Overvaluing of the contractor’s assets as well as overcharging of works/services/supplies by the contractor.
4.2.17 A contractor shall meet his or her contractual obligations in the delivery of products and services.
4.2.18 A contractor shall ensure that he or she conducts himself or herself professionally during the procurement process and honours contractual commitments timeously and in a professional manner.
4.2.19 A contractor shall ensure that the contractor’s obligations in terms of contracts with subcontractors and agents are scrupulously and timeously met, particularly in regard to making payments.
4.2.20 A contractor shall not engage in unfair and unethical practices in dealings with subcontractors.
4.2.21 A contractor shall not make spurious claim for additional payment and extension of time.
4.2.22 A contractor shall not use an advance mobilisation loan for any purpose other than the intended purpose and that project.
4.2.23 A contractor shall perform the contractor’s contract duties in an unbiased and conscientious manner, bearing in mind the legitimate interests of all parties to the procurement process and the public.
4.2.24 A contractor shall not abandon the work that such contractor is contracted to do.
4.2.25 A contractor shall not fail to deliver work to the expectations and obligations as provided by the contract under which the registered contractor is contracted without any valid reason.
4.2.26 A contractor shall ensure that he or she delivers or performs his or her obligations under the contract according to the specifications of his or her contract with a procuring entity.
4.2.27 In respect of any business dealing with procuring entity, the contractor must ensure that there is no conflict of interest and must declare and disclose any conflict of interest or potential conflict of interest.
4.2.28 The contractor shall ensure that it shall comply with and that persons associated with the contractor comply with all applicable laws and regulations with respect to the conduct of its business and further undertake that it shall not and shall ensure that persons associated with the contractor shall not undertake or be involved in, whether directly or indirectly, with any of the following activities—
a. fix prices or terms related to pricing;
b. engage in any anti-competitive activity;
c. rig a competitive bidding process;
d. engage in any money-laundering activity;
e. engaged in or has the reputation of engaging in corrupt, fraudulent, collusive, coercive, unethical or obstructive practices; or
f. has breached any confidentiality obligation towards the procuring entity.
4.2.29 The contractor undertakes that it shall furnish a copy of this Code of Conduct to persons associated with the contractor in so far as such persons associated with the contractor are or will be involved in the delivery or execution of the contract or project.
PUBLIC PROCUREMENT (TRIBUNAL) REGULATIONS
(section 150)
(5th May, 2023)
ARRANGEMENT OF REGULATIONS
REGULATION
PART I
Preliminary
1. Citation
2. Interpretation
3. Application
PART II
Complaint and Appeals Procedure
4. Lodging of complaint or appeal
5. Service of complaint or appeal
6. Defence to complaint or appeal
7. Reply to defence
8. Third party procedure
9. Direction
10. Award against third party in default
11. Consolidation of complaints or appeals
12. Amendment to complaint and defence
PART III
Hearing Procedure
13. Hearing
14. Non-appearance of party
15. Interim order
16. Decision of Tribunal
17. Appeal
PART IV
General Provisions
18. Meetings of Tribunal
19. Referral of decision
20. Register
21. Fine
22. Taxation of costs
23. Offences and penalties
SCHEDULE 1
SCHEDULE 2
S.I. 61, 2023.
PART I
Preliminary (regs 1-3)
These Regulations may be cited as the Public Procurement (Tribunal) Regulations.
In this Act, unless the context otherwise requires—
“appeal” means any decision, matter, act or omission arising out of procurement proceedings by the procuring entity or Authority with respect to which an appeal is preferred; and “complaint” shall be construed accordingly;
“applicant” means any person or entity who lodges an appeal before the Public Procurement Tribunal;
“complainant” or “applicant” means any person or entity who lodges an appeal before the Public Procurement Tribunal;
“costs” means any amount of money reasonably incurred in relation to a complaint or appeal or in defence of a complaint or appeal;
“Registrar” means the Registrar of the Public Procurement Tribunal; and
“respondent” means any person against whom an appeal has been lodged.
These Regulations shall apply in respect of complaints or appeals against any decision, act or omission of an Accounting Officer or the Authority in relation to—
(a) a procurement process; or
(b) the registration of contractors, declassification of information or disciplinary process.
PART II
Complaint and Appeals Procedure (regs 4-12)
4. Lodging of complaint or appeal
(1) A person may lodge with the Tribunal, a complaint or an appeal against a decision—
(a) including a matter, act or omission of the Authority or an Accounting Officer; or
(b) by a procuring entity of the Authority, and the Tribunal shall acknowledge receipt of the complaint or appeal within two days of receipt of such complaint or appeal.
(2) A complaint or appeal under subregulation (1) shall be—
(a) in Form A set out in Schedule 1;
(b) filed with the Registrar of the Tribunal; and
(c) made within 14 days from the date the complainant becomes aware or is notified of the decision, matter, act or omission giving raise to the complaint.
(3) A complaint or appeal lodged in terms of subregulation (1) shall be accompanied by a non-refundable lodging fee and a complaint fee, which is refundable on success of a complaint or appeal, set out in Schedule 2.
(4) The complaint or appeal under subregulation (1) shall contain the—
(a) names and addresses of the parties;
(b) statement of facts giving rise to the complaint or appeal; and
(c) relief or remedy sought.
(5) The complaint or appeal made under subregulation (1) shall be lodged together with copies of—
(a) the decision of the Accounting officer or the Authority, whichever is the source of the complaint;
(b) the relevant set of bidding documents;
(c) the bidding process set forth in the invitation to tender;
(d) any document supporting the complaint or appeal that was submitted during the bidding process by the complainant; and
(e) any other document pertinent to the case.
(6) The Tribunal may allow, after an application to do so is made—
(a) a withdrawal of a complaint or appeal at any point before delivery of the decision; or
(b) an agreement between the parties to a complaint or appeal, settling the matter.
(7) An application under subregulation (6) shall be supported by an affidavit providing reasons for the proposed withdrawal and shall embody a consent to pay costs by the applicant.
5. Service of complaint or appeal
(1) The applicant shall, within seven days after receipt of an acknowledgment under regulation 4(1), summon the respondent in terms of Form B set out in Schedule 1 to present his or her defence.
(2) The summons in subregulation (1) shall be served on the respondent by way of—
(a) personal delivery; or
(b) registered mail with return receipt.
(3) The complainant may, where he or she experiences any difficulty in effecting service under subregulation (2)(a), make an application to the Tribunal for leave to effect substituted service and such application shall be supported by an affidavit deposing as to the efforts that have been made to effect service.
(4) The Tribunal may, upon hearing the application, order that substituted service be effected on the respondent by delivery of a copy of the summons in full view of the respondent or by advertisement in a local newspaper circulating in the area where the respondent had his or her last place of residence or place of business for two consecutive weeks.
6. Defence to complaint or appeal
(1) The respondent shall, within 14 days of receipt of the summons under regulation 5, present to the Tribunal—
(a) an intention to defend in accordance with Form C set out in Schedule 1;
(b) a defence in writing to the complaint or appeal, and shall effect service of the documents under paragraph (a) and (b) on the applicant.
(2) The respondent shall under subregulation (1) effect service by way of—
(a) personal delivery to the applicant; or
(b) registered mail with return receipt.
(3) The respondent may, where he or she experiences difficulty in effecting service under subregulation (2)(a), make an application to the Tribunal for leave to effect substituted service and such application shall be supported by an affidavit deposing as to the efforts that have been made to effect service.
(4) The Tribunal may, upon hearing the application, order that substituted service be effected on the applicant by delivery of a copy of the defence in full view of the applicant or by advertisement in a local newspaper circulating in the area where the applicant had his or her last place of residence or place of business.
(5) The respondent shall respond to the summons in writing, and such response shall—
(a) be divided into paragraphs, numbered consecutively and each paragraph shall contain as nearly as may be, a separate allegation; and
(b) contain a denial or admission to every allegation specifically or state that he or she has no knowledge concerning any allegation made:
Provided that any allegation not so dealt with in terms of this subregulation shall be taken to be admitted.
(6) The respondent shall, where he or she denies an allegation of fact, answer a point of substance and shall not be evasive.
(7) The Tribunal may require the complainant to prove any allegation not so dealt with under subregulation (5) so as to be proven otherwise than by such admission.
(8) Where a respondent fails to present a defence, the Tribunal shall deem the respondent to have waived his or her right to appear and participate in the proceedings, and the Tribunal shall proceed with the hearing ex parte.
(9) Notwithstanding the provisions of subregulation (5), the respondent may, within 14 days of delivery of a decision under regulation 16, make an application to rescind the decision of the Tribunal.
(10) An application made under subregulation (9) shall be supported by an affidavit showing sufficient cause why the respondent has failed to participate in the proceedings and shall provide his or her grounds of defence.
(1) Upon receipt of the defence in terms of regulation 6 (1), the complainant may prepare and submit to the Tribunal, a reply within seven days or such a period that the Tribunal may determine, after receipt of such defence.
(2) The complainant shall, where he or she denies an allegation of fact, answer the point of substance and shall not be evasive.
(1) Where a party to a complaint makes a claim—
(a) against a person who is not a party to the complaint (hereinafter called a “third party”), such party is entitled in respect of any relief claimed against him or her, to a contribution or indemnification from such third party; or
(b) that, the relief or remedy relating to the subject matter of the complaint is substantially the same as a relief or remedy claimed by the complainant, any question or issue in the complaint is substantially the same as a question or issue which has arisen or will arise between such party and the third party and should properly be determined not only as between the parties to the complaint but also as between such parties and the third party,
the party to the complainant may make an application to the Tribunal to present a notice (hereinafter referred to as a “third party notice”).
(2) An application under subregulation (1) shall be in writing and shall state the—
(a) name and address of the third party;
(b) nature of the claim made by the complainant;
(c) stage which the proceedings in the complaint have reached; and
(d) nature of the claim made by the applicant against the third party and its relation to the complainant’s claim against the applicant.
(3) Where—
(a) an application under subregulation (1) is received;
(b) the Tribunal is satisfied that the respondent’s claim against the third party is in respect of a matter referred to in subregulation (1); and
(c) having regard to all the circumstances of the complaint, it is reasonable and proper for the Tribunal to grant leave to the respondent to present a third party notice,
the Tribunal shall grant leave to the respondent to present a third party notice and any other order it deems necessary.
(4) A third party notice under subsection (3) shall be in Form D set out in Schedule 1, and shall state the—
(a) nature of the complainant’s claim against the respondent;
(b) nature of the respondent’s claim against the third party;
(c) relief claimed by the respondent against the third party;
(d) period within which the third party may present his or her defence; and
(e) consequences of the failure by the third party to present his or her defence within such period.
(5) The respondent shall serve the third party with the complainant’s complaint and any other documents in accordance with the procedure under regulation 5(2).
(6) Where a third party notice has been served, the third party shall, where he or she disputes the claim, present his or her defence in accordance with regulation 6 within 14 days of service of the notice.
(1) Where a third party has presented a defence, the Tribunal may—
(a) fix a date for the giving of directions; and
(b) on such date, if satisfied that there is a proper question to be heard as to the liability of the third party in respect of the claim made against him or her by the respondent, order the question of such liability to be heard in such manner, at or after the hearing of the complaint, as the Tribunal may direct.
(2) Where the Tribunal is not satisfied that there is a proper question to be heard under subregulation (1), the Tribunal shall dismiss the application and may order costs against the party presenting a third party notice.
10. Award against third party in default
(1) Where a third party—
(a) is in default in presenting his or her defence within the time specified under regulation 8(b); or
(b) having presented a defence, is in default in appearing on the date fixed for the giving of directions,
the party presenting a third party notice may apply ex parte to the Tribunal for an award against the third party in respect of any contribution, indemnity or relief claimed in the notice.
(2) The Tribunal may, on application by a party in terms of subregulation (1), issue an award against the third party in respect of any contribution, indemnity or relief claimed in the third party notice.
11. Consolidation of complaints or appeals
Where two or more complaints or appeals, arising from the same procurement process are instituted, the Tribunal may consolidate the matters and handle them as one matter.
12. Amendment to complaint and defence
(1) A party to any proceedings under these Regulations may, upon providing sufficient cause, apply in writing to the Tribunal to amend a complaint, defence or reply, within 14 days prior to the hearing of the complaint, defence or reply:
Provided that the other party to the proceedings shall be afforded an opportunity to make a response prior to the hearing.
(2) Any party to the proceedings shall, upon being allowed to amend a complaint, defence or a reply, amend such a complaint, defence or reply within seven days or such a period that the Tribunal may determine.
PART III
Hearing Procedure (regs 13-17)
(1) The hearing proceedings undertaken by the Tribunal shall be quasi-judicial in nature.
(2) The Tribunal shall, prior to a hearing, issue a summons in Form E set out in Schedule 1 to each party to the proceedings.
(3) The parties to the complaint shall appear in person during the hearing.
(4) The Tribunal may, during the hearing require—
(a) any person to produce any information the Tribunal considers relevant;
(b) the attendance of any person to give evidence; and
(c) any person to produce any document that may be in his or her custody.
(5) The evidence tendered by each party during the hearing shall be either under oath or affirmation.
(6) For the purpose of this regulation, “hearing” means all processes required for the Tribunal’s determination, including—
(a) oral and written submissions made by any party;
(b) evidence adduced by each party either oral or written; or
(c) virtual appearance.
(1) The Tribunal may, where either party without lawful excuse fails to attend to a hearing, enter such orders as are just, including but not limited to the following—
(a) an order rescheduling the hearing;
(b) an order dismissing a complaint or entering final judgement; or
(c) an order requiring the non-compliant party to pay the opposing party’s costs caused by the non-compliance.
(2) Where a respondent fails to appear when a complaint is called for hearing, and upon an application by a complainant, the Tribunal may issue an order for ex parte proof of the claim made by the complainant.
(1) The Tribunal may, where it deems it to be in the interest of a procurement complained of under these Regulations, suspend the procurement process of the particular project for a period not exceeding 30 days.
(2) The Tribunal may suspend a project under subregulation (1) where—
(a) the Accounting Officer has not made an award of the bid; or
(b) a letter has not been issued to the successful bidder indicating the commencement of the contract.
(3) Notwithstanding the provisions of subregulation (2), the Tribunal may suspend a procurement project where an aggrieved party has through an application, adduced sufficient evidence to demonstrate that the execution of such a contract—
(a) may cause substantial loss to public revenue; or
(b) will prejudicially affect the public interest.
(1) The Tribunal shall, within 21 days after conclusion of a hearing of the complaint or appeal—
(a) uphold a decision of the Accounting officer and dismiss the complaint;
(b) set aside the decision of the Accounting officer and order the procuring entity to—
(i) remit the proceedings to the procuring entity to be re-heard,
(ii) suspend the procurement process, or
(iii) cancel the procurement process; or
(c) provide for such other relief as may be deemed reasonable and necessary.
(2) The Tribunal shall, where an allegation of fraud or bias is proved, order any person found guilty by the Tribunal of the fraud or bias to be excluded from the procurement process.
(3) The Tribunal shall notify a complainant in writing, of its decision made in terms of this regulation, not later than three days after the decision is made.
(4) A decision of the Tribunal shall be published by notice in the Gazette.
(1) A party aggrieved by the decision of the Tribunal under these Regulations may within 30 days of the decision of the Tribunal, lodge an appeal with the High Court.
(2) Notwithstanding the provisions of subregulation (1), where an appeal brought in terms of subsection (1) is against Government, such party shall act in accordance with section 138 of the Act.
PART IV
General Provisions (regs 18-23)
(1) Subject to the provisions of these Regulations, the Tribunal may regulate its own proceedings.
(2) The Tribunal shall hold its first meeting on such a date and at such a place as the Minister may fix and thereafter the Tribunal shall hold meetings at least once in every three months, and other such meetings as are necessary for the efficient performance and exercise of it functions.
(3) There shall preside at any meeting of the Tribunal—
(a) the President; or
(b) in the absence of the President, the Vice-President.
(4) The quorum at any meeting of the Tribunal shall be a simple majority of the members.
(5) A decision of the Tribunal on any question shall be by the majority of the members present and voting at the meeting and, in the event of an equality of votes, the member presiding shall have a casting vote in addition to that member’s deliberative vote.
(6) The Tribunal may invite any person whose presence it deems necessary to attend and participate in the deliberations of a meeting of the Tribunal, but such person shall have no voting right.
(7) A decision of the Tribunal shall be recorded and where there is a dissenting decision, the dissenting decision shall be recorded and the reasons shall be recorded in the minutes of the proceedings.
The Tribunal may refer or report any aspect of its decision on any complaint or appeal to the Attorney General, the Directorate on Corruption and Economic Crime or any other authority for further action, where applicable.
(1) The Tribunal shall establish a register where a copy of all its decisions shall be kept.
(2) A person may examine and request to read any decision in the register without the payment of any fee.
(3) A person may make a copy of a decision in the register on payment of a fee set out in Schedule 2.
The Tribunal may order a complainant against whom liability has been established in a hearing, to pay such fine as the Tribunal may deem appropriate.
(1) Where a party has been awarded costs and wishes to recover the costs, he or she shall lodge a bill of cost for taxation, and the Registrar shall tax such bill.
(2) The Tribunal shall award costs only in relation to travelling, accommodation and filing of documents.
(3) Notwithstanding the provisions of subregulation (1), the bill of costs shall be filed with the Tribunal in writing, which shall include copies of the relevant evidence including payment vouchers, receipts or invoices.
(1) Any person who knowingly submits to the Tribunal any information or document that is false commits an offence and is liable to fine not exceeding P500 000 or to imprisonment for a term not exceeding five years, or to both.
(2) Any person who fails to comply with any order of the Tribunal under these Regulations commits an offence and is liable to a fine not exceeding P500 000 or to imprisonment for a term not exceeding five years, or to both.
Form A
(reg. 4(2))
COMPLAINT/APPEAL FORM
1. Details of the Complainant:
Name of Complainant Company or firm: …………………………………………………………………………
Address: ………………………………………………………………………………………………………………..
Physical Address: ……………………………………………………………………………………………………
City/Town/Village: …………………………………………………………………………………………………….
Telephone number: ……………………………………………………………………………………………………
Mobile telephone number: …………………………………………………………………………………………..
E-mail address: ………………………………………………………………………………………………………..
2. Details of procuring entity
Name: ……………………………………………………………………………………………………………………
Address: …………………………………………………………………………………………………………………
Physical Address: ……………………………………………………………………………………………………..
Telephone: ……………………………………………………………………………………………………………….
Procurement number: ………………………………………………………………………………………………….
Description of project or goods being tendered:
………………………………………………………………………………………………………………………………
………………………………………………………………………………………………………………………………
………………………………………………………………………………………………………………………………
Approximate value of tender: …………………………………………………………………………………………
Tendering timetable-
when tenders were invited: ……………………………………………………………………………………………
Closing date for tender: ………………………………………………………………………………………………..
Date contract awarded (if applicable): ………………………………………………………………………………
3. Description of complaint and statement of what complainant thinks would be a reasonable solution to the complaint:
……………………………………………………………………………………………………………………………….
……………………………………………………………………………………………………………………………….
……………………………………………………………………………………………………………………………….
4. Documents submitted in support of complaint:
……………………………………………………………………………………………………………………………….
……………………………………………………………………………………………………………………………….
……………………………………………………………………………………………………………………………….
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Signed by |
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……………………………………………………………………………………………………………………………… |
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Signature of |
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Company date stamp: |
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Done under my hand at …………………………… this …………. day of ……………. year …………. |
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Commissioner of Oaths ……………………………………………….. Date stamp |
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For official use only |
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Received by: ………………………………….. |
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Public Procurement Tribunal Date Stamp: |
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Form B
(reg. 5(1))
SUMMONS
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Complaint Number ………………………………….. |
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1. ………………………………………………………………… – COMPLAINANT/APPELLANT |
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2. ………………………………………………………………… – RESPONDENT |
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SUMMONS TO FILE A DEFENCE |
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TARE NOTICE that ………………………………………. (“the complainant”) of address ……………………… has lodged a complaint or appeal against you with the Public Procurement |
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Tribunal (“the Tribunal”), details of which are attached herewith. |
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PURSUANT to regulation 5 of the Public Procurement (Tribunal) Regulations, you are required to submit to the Tribunal, within 14 days from the date of this notice, a written reply to the complaint together with all relevant documents you will rely upon in support of your defence. A copy of the reply shall be served to the complainant. |
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TAKE FURTHER NOTICE that failure to submit a reply within the stipulated period will imply that you have waived your right to be heard and the Tribunal shall proceed to determine the matter in your absence. |
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GIVEN under seal of the Tribunal this………………………… day of ……………….. 20……… |
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……………………………………………………………………. |
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COPY TO BE SERVED UPON: |
RECEIVED BY: |
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……………………………………… |
…………………. |
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……………………………………… |
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……………………………………… |
…………………. |
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……………………………………… |
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Form C
(reg. 6(1))
INTENTION TO DEFEND
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Complaint Number ………………………………….. |
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1. ………………………………………………………………… – COMPLAINANT/APPELLANT |
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2. ………………………………………………………………… – RESPONDENT |
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TAKE NOTICE that the Respondent intends to defend this matter. |
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TAKE FURTHER NOTICE that the grounds on which the Respondent intends to rely upon are as follows; |
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………………………………………………………………………………………………………………………… |
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………………………………………………………………………………………………………………………… |
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………………………………………………………………………………………………………………………… |
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………………………………………………………………………………………………………………………… |
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………………………………………………………………………………………………………………………… |
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………………………………………………………………………………………………………………………… |
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DATED at ………………………………… this………………………… day of ………………….. 20……… |
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Address: …………………….. |
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To: Complainant: …………………………. |
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Address: ………………………………. |
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………………………………. |
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And to: The Registrar |
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Address: ………………………………. |
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………………………………. |
Form D
(reg. 8(4))
THIRD PARTY NOTICE
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Complaint Number ………………………………….. |
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1. ………………………………………………………………… – COMPLAINANT/APPELLANT |
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2. ………………………………………………………………… – RESPONDENT |
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3. ………………………………………………………………… – THIRD PARTY |
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TO THE ABOVE-NAMED THIRD PARTY: |
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TAKE NOTICE that the above-named complainant has commenced proceedings against the above-named respondent for the relief set out in a summons, a copy of which is herewith served on you. |
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The above-named respondent claims a contribution or indemnification (or such other grounds as may be sufficient to justify a third-party notice) on the grounds set forth in the annexure hereto. |
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If you dispute those grounds or if you dispute the claim of the complainant against the respondent, you may give notice of your intention to defend within 14 days. Such notice shall be in writing and filed with the Tribunal, and a copy thereof served on the above-named respondent at the address set out at the foot of this notice. |
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Dated at ………………………………… this………………………… day of ………………….. 20……… |
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Address: …………………….. |
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To: Complainant: …………………………. |
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Address: ………………………………. |
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………………………………. |
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And to: Respondent |
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Address: ………………………………. |
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………………………………. |
Form E
(reg. 13(2))
SUMMONS TO APPEAR
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Complaint Number ……………………/20…… |
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1. ………………………………………………………………… – COMPLAINANT |
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2. ………………………………………………………………… – RESPONDENT |
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NOTICE OF DATE OF HEARING |
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TAKE NOTICE that the above complaint has been fixed for hearing on the …………………… day of …………………. 20………………at……………….. hours before the Tribunal. |
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YOU ARE hereby required to appear in person without fail, and submit to the other party and the Tribunal all evidence you intend to rely on in defending your case before ………………………………… day of …………….. 20……. You may also wish to bring witnesses if any. |
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GIVEN under the seal of the Tribunal this ……………………. day of ………………….. 20……… |
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…………………………………………………………………… |
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COPY TO BE SERVED UPON: |
RECEIVED BY: |
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……………………………………… |
…………………. |
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……………………………………… |
…………………. |
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……………………………………… |
…………………. |
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……………………………………… |
…………………. |
(regs. 4(3) and 19(3))
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Fee |
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Lodging of complaint or appeal Complaint |
P500 |
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Complaint’s financial bid submission |
Percentage to be paid of complaints financial bid submission (%) |
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P10 million and below |
0,5 |
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Between P10 million and P50 |
0.75 |
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P50 million |
1 |
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Except that in no case shall the complaint fee paid be less than P5 000 or more than P5 000 00 and where there is no tendered total sum, the applicable complaint fee shall be based on the procuring entity’s budget for the project, but still applying the financial thresholds and percentages. |
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Copy of Tribunal decision per page |
P3 |
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Attendance of court/per hour |
P100 |
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PUBLIC PROCUREMENT (NATIONAL ELECTRONIC PROCUREMENT) REGULATIONS
(30th June, 2023)
(section 150)
ARRANGEMENT OF REGULATIONS
REGULATION
1. Citation
2. Interpretation
3. Application
4. Objective of NePS
5. Registration of suppliers
6. User creation
7. Preparation of tender
8. Advertising of tender
9. Auction
10. Submission of tender
11. Opening of tender
12. Adjudication and award of tender
13. Signing of contract
14. Tender submission extension
15. Electronic signature, encryption and decryption
16. Certification and payment
17. Handling of complaint by contractor
18. Catalogue items
19. Management of demand
20. Management of supplier
21. Quotations
22. Management of contract
23. Evaluation of supplier
24. Procurement planning
25. E-payment
26. Unavailability of system
27. Uploading tender document
28. Amendment of tender document
29. Withdrawal of bid
30. Contract negotiation
31. Audit trail
32. Records
33. Confidentiality
34. Common procurement vocabulary
35. Procurement request
36. Cancellation of tender
37. Availability of funds and procedure with suspension clause
S.I. 75, 2023.
These Regulations may be cited as the Public Procurement (National Electronic Procurement) Regulations.
In these Regulations, unless the context otherwise requires—
“authorised personnel” means an individual who has been granted a specific legal or regulatory authority to perform certain actions or access certain areas, information or resources;
“award” means a decision by the Accounting Officer, or any person to which the Accounting Officer may delegate powers of adjudication and award a tender within specified financial limits, to determine the successful bidder;
“call off order” means an order placed by a procuring entity under general terms and pricing on a range of goods under a framework contract, without having to negotiate the terms every time;
“common procurement vocabulary” means a standardised classification system for public procurement activities;
“designated official” means an individual who has been formally designated by an organisation, government agency, or regulatory body, to be responsible for a specific duty or activity related to compliance with legal and regulatory requirements;
“forward auction” means a type of auction which a buyer competes to purchase goods or services from a seller, where the buyer is motivated to bid higher in order to outcompete another potential buyer and secure an item being auctioned;
“Government Data Centre” means a centre responsible for government information system and network;
“guidelines” means any advice given by the Authority through any circular that may be issued to the procuring entities in accordance with section 8(1)(j) of the Act;
“legal frame” means the legal framework that governs a particular activity or situation;
“NePS” means the National eProcurement System;
“NePS support team” means a group of professionals who provide technical support, maintenance and troubleshooting services for NePS;
“non-complex procurement” means the procurement of goods, services, or works that are relatively straightforward and do not require extensive technical expertise;
“procurement method” means the procurement method provided under section 52 of the Act;
“procurement process” means the successive stages in the procurement cycle including planning, choice of procedure, measures to solicit offers from bidders, examination and evaluation of such offers, award of a contract and contract management;
“public procurement stakeholder” means a person who has an interest in or is affected by the public procurement activities of an organisation;
“records” means any documents or information relating to any stage of a procurement process and includes—
(a) an electronic or manual archive containing the document or information relating to a procurement process; or
(b) a record received or kept by a public body, in the exercise of its functions;
“statement of requirement” means a document prepared by a procuring entity providing a correct and competitive description of the subject of the procurement for the purposes of creating a fair and open competition;
“third party” means an individual, organisation or entity that is not directly involved in a particular transaction; and
“user” means a procuring entity, system administrator, auditor, civil society organisation or any other user as may be approved by the Authority.
(1) A procuring entity may carry out its procurement activity using the National eProcurement System.
(2) Where a procuring entity uses the NePS, the procuring entity shall implement the NePS in full.
(3) Notwithstanding subregulation (2), where the NePS is still being implemented, the procuring entity shall partially implement the NePS in parallel with the conventional manual procedure of procurement.
(4) A public procurement stakeholder shall upon successful registration have appropriate access to the relevant features of the NePS as may be determined by the Minister.
(5) The NePS shall consist of several modules, sub-systems including interlinked sub-systems, which shall be used individually or in combination, in order to accomplish a function relating to an e-procurement related process.
(1) The objective of the NePS is to enhance efficiency and transparency in public procurement through the implementation of a comprehensive electronic public procurement solution to be used by any procuring entity.
(2) The use of the NePS shall only be for a lawful purpose that does not infringe the rights of or restrict or inhibit the use of the system by any third party.
(3) The restriction or inhibition under subregulation (2) may include—
(a) conduct which—
(i) is intended to mislead,
(ii) is defamatory, or
(iii) may cause distress or inconvenience to any person;
(b) the transmission of obscene or offensive content; or
(c) the interruption of the normal flow of content within the NePS.
(4) The Government Data Centre shall host the NePS and the NePS’s web portal shall be accessible for use through a specified web URL.
(5) A person may, upon successful registration, get access to the NePS.
(6) The information obtained from the NePS shall be in accordance with—
(a) specified terms and conditions of use; and
(b) a disclaimer and privacy policy.
(1) The Authority shall be responsible for—
(a) all aspects of the management of contractor registration;
(b) any decision relating to an application for registration;
(c) the re-classification of registered contractors; and
(d) any other decision related to contractor registration.
(2) The Authority shall interface the registration of small, medium and micro enterprises with any system of the relevant authority responsible for a supplier.
(1) An Accounting Officer shall authorise the creation of a user in the NePS to enable the user to perform any procurement activity.
(2) The office of the Accounting Officer shall be responsible for the authorisation of the creation of system administrators in the NePS.
(3) The creation of a user under subregulation (1) shall be followed by an online verification or validation of documents through due diligence in accordance with the Data Protection Act (Act No. 32 of 2018) as the Authority may deem fit.
(1) A procuring entity may perform its procurement activity through the NePS.
(2) A procuring entity which performs its procurement activity through the NePS shall prepare a tender document or a procurement notice through the NePS.
(3) Where the NePS fails to handle characters or graphical files, the procuring entity may scan a tender document and such document shall be in the form of a scanned electronic document.
(4) A date for a Tender Notice published in the Gazette and NePS by the procuring entity portal shall be treated as the start date of the tender.
(5) Where specified in the Tender Notice, the NePS shall provide details or features for online pre-tender meetings.
(6) An Accounting Officer shall through the NePS, vet the tender document and the Tender Notice.
(7) The electronic preparation of a bid shall remain in the NePS in an encrypted form accessible only to the bidder preparing the bid.
(1) A procuring entity shall publish an invitation for a tender in the Gazette, in a newspaper of national circulation, electronic media or Government portal and in the NePS in accordance with these Regulations.
(2) The invitation prepared by a procuring entity shall contain a detailed description of the works, services or supplies, time-schedule and any other conditions of the tender.
(3) A procuring entity shall make a tender document available on the NePS for a contractor to view and consider participation.
(4) A contractor shall submit a request for clarification or a response to a query through the NePS within the time set out in a tender document.
(1) A procuring entity may auction goods electronically through the NePS.
(2) The Authority shall issue guidelines on the procedure to be followed and other applicable conditions for conducting an auction through the NePS.
(3) Where a procuring entity wishes to conduct procurement by auction, the procuring entity shall specify whether the auction is a reverse or forward auction.
(4) A procuring entity shall use an electronic reverse auction in the procurement of standard goods for which specifications may be determined with precision where—
(a) price or quantity is the only determinant; and
(b) there exists a significant number of potential bidders.
(5) A procuring entity shall use an electronic reverse auction as a procurement method for non-complex procurement.
(6) Where a contractor is to be pre-qualified before any auction, a procuring entity shall conduct a pre-qualification process online in the system, or offline in accordance with the Act.
(7) An electronic reverse auction award shall be based on ranking of prices such that a tender is awarded at the lowest price to the corresponding qualified bidder in case of purchase.
(8) A bidder shall automatically and instantaneously be informed through the NePS of the new rankings as the rankings occur, together with the price in such manner that the bidder is able to ascertain such bidder’s ranking at any moment.
(9) A procuring entity shall ensure that the identity of a bidder is not disclosed or identified by any party during any phase of any auction.
(1) The submission of a tender shall be as set out in Part VII of the Public Procurement Regulations (S.I. No. 23 of 2023).
(2) A tender shall bear an electronic signature or a handwritten signature for identity and authentication.
(3) A procuring entity shall allow a reasonable time for a bidder to decrypt and re-encrypt his or her bid after the closing date and time for submission of a bid.
(4) A bid submitted through the NePS shall represent an offer from a contractor.
(5) A bidder shall submit the bid within the specified tender closing time and date.
(1) A procuring entity shall open a tender on the NePS in accordance with this regulation.
(2) A procuring entity shall—
(a) open an electronic bid in a manner stated in the bidding document; and
(b) prepare a bid opening report.
(3) A bidder or his or her representative who wishes to witness a tender opening may virtually be present at the tender opening meeting.
(4) A procuring entity shall publish the bid opening records in the appropriate section of the NePS.
12. Adjudication and award of tender
A procuring entity shall adjudicate and award a tender in the NePS in accordance with the Public Procurement Regulations.
(1) The signing of a contract by a bidder shall be in accordance with Part VIII of the Public Procurement Regulations.
(2) An electronic signature shall be required for the security and integrity of data transmission.
(3) Where a bidder fails to electronically sign a contract in the NePS, he or she may sign the contract manually.
14. Tender submission extension
A procuring entity shall extend the submission period of a tender on the NePS in accordance with the Public Procurement Regulations.
15. Electronic signature, encryption and decryption
(1) A procuring entity shall—
(a) sign a bidding document and bid data before the bidding document and bid data are published; and
(b) release data in respect of the bids received.
(2) A contractor shall sign a bid and bid data before submitting the bidding document through the NePS.
(3) A party using the NePS to submit the bidding document shall be bound by the transaction processed through the NePS.
(1) A procuring entity shall use standard forms generated from the NePS for issuing different types of certifications, including completion certificate, acceptance certificate, quality certificate, and any other relevant documents as may be determined by the Authority.
(2) Prior to authorising the payment of an invoice, a procuring entity shall verify receipt of supplies, performance of services or execution of works in accordance with the contract.
17. Handling of complaint by contractor
(1) A complaint by a contractor shall be dealt with in accordance with sections 104, 105 and 106 of the Act.
(2) The Tribunal shall facilitate all communications relating to disputes for expedient and transparent resolution of any such matter arising out of the e-procurement carried out over the NePS.
(1) A catalogue shall contain a list of essential and common user items as may be determined by a procuring entity.
(2) A procuring entity shall, by the end of December of each year, submit to the Government Procurement Office or any other office designated in terms of the Act, annual estimates of the required catalogue items including descriptions, specifications, statement of requirements and quantities.
(3) The Government Procurement Office or any other office designated shall arrange for procurement of catalogue items which are—
(a) required continuously or repeatedly over a set period of time; and
(b) common to more than one procuring entity and may be procured through framework agreements by placing call-off orders.
(4) A procuring entity shall place an order directly with a contracted service provider for any item included in the price catalogue within one working day after reaching the buffer stock.
(5) Where a catalogue item requested to be purchased by the procuring entity is not available, the Government Procurement Office or any other designated office shall, within one working day and upon receipt of the request, issue a non-availability notice to the procuring entity.
(6) Where the Government Procurement Office or any other designated office receives the non-availability notice under subregulation (5), the Government Procurement Office or the designated office may opt for another alternative source of supply.
(7) The Government Procurement Office or any other designated office shall procure non-catalogue items for use by a procuring entity from a supplier awarded a framework agreement through placing of a call-off order.
(8) The non-catalogue items under subregulation (7) shall be subjected to competition.
(9) The Government Procurement Office or any other office designated may procure a catalogue and a non-catalogue item from any prequalified source if the item meets the required standards, and is available at a competitive price.
(10) The NePS shall provide for the generation of a report showing common use items across Ministries as per the threshold set by the Government Procurement Office.
(1) An authorised personnel shall generate an order on the NePS, and the demand shall be managed in accordance with the Public Finance Management Act (Cap. 54:01).
(2) The Minister shall issue a policy to guide on acquisition of selective procurement and the procuring entity’s thresholds.
The NePS shall have features for supplier management including—
(a) supplier registration whether active, deactivated, suspended or delisted;
(b) supplier selection or rotation;
(c) supplier performance evaluation;
(d) end of activity report; and
(e) any other functionality as may be determined by the Minister.
The process for a quotation shall be carried out in the NePS and shall be in accordance with the standard bidding documents appropriate for such process.
(1) A procuring entity shall manage contracts in the NePS in accordance with Part XI of the Public Procurement Regulations.
(2) The procuring entity shall nominate an individual who has the required knowledge, skills and ability to effectively carry out his or her responsibilities by using the dashboard provided in the NePS and to manage contracts.
(3) The Authority shah prepare a procedure on how a contract shall be monitored and controlled online.
(4) The procuring entity shall enter any contract information into the NePS, during and after the implementation of the contract for the purpose of —
(a) records and reporting; or
(b) assessing and determining any deviation from the terms and conditions of the contract.
(5) The NePS shall provide a tracking feature for all the contract agreements.
(6) A designated official shall in order to make a decision during the administration of a contract agreement, check the—
(a) contract status;
(b) contracted parties;
(c) contract period;
(d) supplies;
(e) works or services covered; and
(f) contract points.
(7) Where a contract needs to be amended, the NePS shall show an auto alert for the required action.
(8) The designated official shall record an appropriate reason before any amendment under subregulation (7) is made.
(9) A procuring entity shall base the contract management on the workflow process configured for the procuring entity.
(1) The NePS shall have a feature to evaluate and monitor a supplier’s performance based on the criteria set out in the Public Procurement Regulations.
(2) A procuring entity may—
(a) conduct supplier evaluation and performance evaluation; and
(b) produce a report to the Accounting Officer and the Authority.
(3) The Authority may conduct monitoring and evaluation of the supplier’s contract or awarded tender through the NePS.
(1) A procuring entity may use the NePS to prepare an annual strategic procurement plan for a procuring unit.
(2) The head of a procuring unit shall prepare and submit a consolidated annual strategic procurement plan to the Accounting Officer for approval prior to the commencement of the financial year and the plan shall be implemented in accordance with the timelines set out in the plan.
(3) The Accounting Officer shall publish the annual strategic procurement plan in the NePS prior to the commencement of the financial year in accordance with section 71(b) of the Act.
(4) The Accounting Officer—
(a) may review and update the annual procurement plan quarterly; and
(b) shall on a quarterly basis review compliance and submit adherence reports to the Authority.
(5) The NePS shall provide a procurement plan monitoring feature.
The NePS shall have a feature for e-payment using different payment platforms in line with written laws.
(1) The NePS support team shall ensure that the NePS is always available for use unless under maintenance or there are unforeseen circumstances which may render the NePS unavailable.
(2) Where the NePS is offline or unavailable due to unforeseen circumstances, the Accounting Officer and the NePS support team shall assess the circumstances.
(3) The unforeseen circumstances under subregulation (2) shall be handled as follows—
(a) at the stage of preparation for invitation to tender, a procuring entity shall wait until the system has recovered and thereafter transmit the electronic tender documentation;
(b) at the stage of acquiring the tender documentation, a contractor shall—
(i) make a request of the tender documentation using other means provided, or
(ii) wait until the system has recovered, and proceed to make an electronic acquirement of the tender documentation, and the entity may, by taking into consideration the extent to which an individual case is affected, publish a notice to extend the time-limit tendering;
(c) at the stage of submission of a tender a bidder shall—
(i) submit his or her tender using other means provided by the tender documentation, or
(ii) wait until the system has recovered and then proceed to make an electronic submission of the tender, and the entity may, by taking into consideration the extent to which an individual case is affected, publish a notice to extend the tender closing date;
(d) at the stage of opening of a tender, the procuring entity shall—
(i) wait until the system has recovered and then proceed to open the tender, or
(ii) defer opening of the tender, and an exception of this provision shall be given where it is certain that there exists no electronic tender;
(e) under an exceptional case, the tender may be cancelled; or
(f) any other option as may be deemed relevant by the Accounting Officer.
(4) Where the NePS is offline due to maintenance, the NePS support team shall inform the NePS users—
(a) before system downtime;
(b) the expected maintenance duration and the expected uptime; and
(c) when the NePS is back online.
(1) The NePS shall have a feature to support uploading of different types of document formats as per the requirements, except executable files.
(2) The uploaded documents shall have audit trail records.
28. Amendment of tender document
A procuring entity or bidder shall make an amendment to a tender document on the NePS in accordance with regulation 56 of the Public Procurement Regulations.
A procuring entity or bidder shall make a withdrawal of a bid document in accordance with Part VII of the Public Procurement Regulations.
(1) A contract negotiation shall be done in accordance with Part VIII of the Public Procurement Regulations.
(2) A contract negotiation may be conducted online or in person if applicable to a specific procurement type or category in accordance with the requirements of the Act.
(3) The results of a contract negotiation under subregulation (2) shall be entered in the NePS in accordance with the Public Procurement Regulations.
(1) The NePS shall provide an end-to-end audit trail feature that shows a record or trace of any activity in the procurement process.
(2) The Authority shall conduct a regular internal audit of a procurement process.
(3) A procurement activity financed by the Government shall be subject to an audit conducted by the Auditor General to ensure that—
(a) funds are expended for their intended purpose;
(b) value for money is maximised;
(c) a proper and accountable system is in place and adhered to; and
(d) any weakness in the procurement process is identified.
(4) The Auditor General’s procurement audit report shall be presented annually to the Minister for his or her information and endorsement.
(5) An employee of a procuring entity involved in any procurement process shall cooperate with and disclose information to auditors, evaluators and any other authority conducting an audit or monitoring, and evaluation reviews in accordance with the Act.
A procuring entity shall keep records in accordance with any applicable laws.
A procuring entity shall maintain confidentiality in accordance with any applicable laws.
34. Common procurement vocabulary
There shall be a common procurement vocabulary for every category and subcategory of works, services and supplies.
(1) Where the NePS is in place, a procuring entity may submit all procurement requirements through the NePS.
(2) A procuring entity may, as far as possible, manage all procurement requests through the NePS.
A procuring entity shall carry out cancellation of a tender process in accordance with Part VII of the Public Procurement Regulations.
37. Availability of funds and procedure with suspension clause
(1) A procuring entity shall not launch a call for proposals and bidding procedures without a specific budgetary allocation approved, and funds shall be available before initiating any procedure.
(2) A procuring entity shall not award or sign a contract without the adoption of the financing decision and the legal frame.
(3) A bidding document or guidelines of a bidder shall contain a suspension clause providing that the process may be suspended in the case of non-availability of funding.
(4) Where the financing agreement or the legal frame is not signed the procuring entity shall cancel the bid.
PUBLIC PROCUREMENT: SUBSIDIARY LEGISLATION
INDEX TO SUBSIDIARY LEGISLATION
Public Procurement and Asset Disposal (Independent Complaints Review Committee) Regulations
Public Procurement and Asset Disposal Regulations
Public Procurement and Asset Disposal (Retroactive Approvals) Order
Public Procurement and Asset Disposal (Suspension and De-listing of Contractors) Regulations
Public Procurement Regulations
Public Procurement (National Electronic Procurement) Regulations
Public Procurement (Tribunal) Regulations
“>PUBLIC PROCUREMENT AND ASSET DISPOSAL REGULATIONS
(section 130)
(24th February, 2006)
ARRANGEMENT OF REGULATIONS
REGULATION
PART I
Preliminary (regs 1-4)
1. Citation
2. Interpretation
3. Application of Regulations
4. International obligations
PART II
Procuring Entities (regs 5-19)
5. Composition of procuring entity
6. Powers of a procuring entity
7. Accounting officer
8. Composition of Ministerial Committee
9. Functions of Ministerial Committee
10. Meetings of Ministerial Committee
11. Composition of procurement unit
12. Functions of procurement unit
13. Powers of procurement unit
14. Procedure in case of disagreement
15. Maintenance of independence
16. Delegation of powers by the accounting officer
17. Third party procurement
18. Records of procuring entity
19. Procedure for Defence Force, Police Service etc.,
PART III
Public Procurement Rules and Process (regs 20-39)
20. Preference and reservation
21. Records of procurement
22. Communication
23. Emergency procurement
24. Splitting of procuring requirements
25. Aggregation of requirements
26. Framework contracts
27. Initiation of procurement requirements and confirmation of funding
28. Pre-qualification
29. Statement of requirements
30. Bidding documents
31. Pre-bid meetings
32. Selection of bidders
33. Bidding period
34. Clarification of bidding documents
35. Format of bid document
36. Bid submission methods
37. Withdrawal of bids
38. Bid receipt and openings
39. Minimum qualification
PART IV
Evaluation Processes (regs 40-53)
40. Evaluation
41. Change to bid details
42. Choice of evaluation method
43. Evaluation by quality and cost based selection
44. Evaluation by quality based selection
45. Evaluation by fixed budget selection
46. Evaluation by least cost selection – supplies and works
47. Evaluation by least cost selection – services
48. Evaluation by qualification selection
49. Amendment of bid details
50. Clarification of bids received
51. Negotiations for open, restricted and quotation biddings
52. Negotiations under direct procurement method
53. Award of contracts
53A. Tender cancellations
PART V
Choice of Procurement Methods (regs 54-61)
54. Choice of procurement methods
55. Open domestic bidding
56. Open international bidding
57. Restricted international bidding
58. Restricted domestic bidding
59. Quotations proposals procurement
60. Micro procurement
61. Direct procurement
PART VI
Procurement of Supplies (regs 62-68)
62. Policy of standardisation
63. Statement of requirements for procurement of supplies
64. Bidding documents
65. Pre-qualification for supplies
66. Least cost selection – supplies evaluation
67. Delivery terms
68. Inspection
PART VII
Procurement of Works (regs 69-72)
69. Statement of requirements for procurement of works
70. Drafting of bidding documents for works
71. Pre-qualification for works
72. Evaluation methods for works
PART VIII
Procurement of Services (regs 73-76)
73. Statement of requirements for procurement of services
74. Drafting of bidding documents for services
75. Pre-qualification for services
76. Evaluation methods for services
PART IX
Administrative Review (regs 77-79)
77. Claim for compensation for contravention of legal provisions
78. Procedure for claiming compensation
79. Procuring entity to be notified of complaint
PART X
General (regs 80-97)
80. Contract pricing
81. Price adjustment
82. Payment terms
83. Payment method
84. Payment structure
85. Advance payments
86. Interim or stage payments
87. Retained payments
88. Payment security
89. Payment documents
90. Payment period
91. Payment and payment delays
92. Currency for payment and limitations thereon
93. Export and import licences
94. Insurance and indemnity
95. Contract amendments
96. Variation or change order to contract
97. Contract amendments, variations or change orders
PART XI
Disposal of assets (regs 97-122)
98. Application of rules on disposal of public assets
99. Records of disposal of public assets
100. Disposal planning
101. Initiation of disposal requirements and approval for disposal
102. Selection of disposal method
103. Valuations
104. Description of assets
105. Bidding documents
106. Advertisement and bidding periods
107. Inspection of assets
108. Format of bids
109. Submission of bids
110. Withdrawal of bids
111. Bid closing process
112. Bid opening process
113. Evaluation methodology
114. Re-bidding due to identical bids
115. Evaluation based on price only
116. Evaluation based on price and other factors
117. Evaluation teams and reports
118. Negotiations under competitive methods
119. Negotiations under direct negotiation
120. Failure to reach the reserve price
121. Award of contract
122. Contract placement
PART XII
Methods for disposal of public assets (regs 123-138)
123. Selection of disposal method
124. Conditions for use of public auction
125. Conditions for use of public bidding
126. Conditions for use of direct negotiations
127. Conditions for use of trade-ins
128. Conditions for use of disposal by transfer to another procuring and disposing entity
129. Conditions for use of disposal by conversion or classification of assets into another form
130. Conditions for use of disposal by destruction of assets
131. Public auction
132. Appointment of an auctioneer
133. Public bidding
134. Direct negotiations
135. Trade-in
136. Transfer to another procuring and disposing entity
137. Destruction of assets
First Schedule
Second Schedule
Third Schedule
Fourth Schedule
Fifth Schedule
S.I. 12, 2006,
S.I. 28, 2013,
S.I. 68, 2020.
PART I
Preliminary (regs 1-4)
These Regulations may be cited as the Public Procurement and Asset Disposal Regulations.
In these Regulations, unless the context otherwise requires—
“accounting officer” means the designated accounting officer of a procuring and disposing entity or, where none has been so designated, the Permanent Secretary of a procuring and disposing entity;
“award” means a decision by the Board, any of its committees or any other subsidiary body of a procuring entity to which the Board may delegate powers of adjudication and award within specified financial ceilings, to determine the successful bidder;
“best practices” means 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;
“bid submission methods” means documents containing instructions on the method of bid submission;
“Contracts Committee” means the Ministerial Tender Committee or the District Tender Committee;
“disposal process” means the successive stages in the disposal cycle, including planning, choice of procedure, measures to solicit offers from bidders, examination and evaluation of such offers and award of contract;
“dual envelope method” means a one stage-two envelope method of bid submission in which a bid is submitted in an outer sealed envelope, containing two separately sealed and labelled envelopes, marked and containing separate technical and financial proposals which are opened on different dates, in separate bid openings;
“direct procurement method” means a sole source procurement method for requirements where exceptional circumstances prevent the use of competition;
“emergency procurement” means a procurement under circumstances which are urgent, unforeseeable and not caused by any dilatory conduct of the procuring entity;
“fixed budget selection” means selection of a bidder with the best technical bid who is within the budget;
“foreign provider” means a provider who is not a citizen of Botswana and whose operations are not based in Botswana;
“framework contracts” mean a contractual arrangement which allows the procuring entity 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” mean any advice given by the Board through any circular that may be issued to procuring and disposing entities in accordance with section 28 of the Act;
“INCOTERMS” means the international commercial terms, issued by the International Chamber of Commerce;
“least cost selection services” means the cost selection evaluation method set out in Part V of the Fourth Schedule;
“least cost selection-supplies and works” means the cost selection evaluation method set out in Part IV of the Fourth Schedule;
“local provider” means a company registered in Botswana irrespective of whether or not it is wholly owned and controlled by citizens of Botswana;
“open international bidding” means a procurement or disposal method open to competition and participation by all providers through advertisement of the procurement or disposal opportunity and which specifically seeks to attract foreign providers;
“open domestic bidding” means a procurement or disposal method open to participation on equal terms by all providers through advertisement of the procurement or disposal opportunity in the Gazette and in a newspaper of wide circulation in Botswana;
“procurement activity” includes a disposal as defined under section 2 of the Act;
“procurement method” means the methods defined in Part V;
“procurement process” means the successive stages in the procurement cycle including planning, choice of procedure, measures to solicit offers from bidders, examination and evaluation of such offers, award of contract and contract management;
“provider” means a natural person or an incorporated body including a consultant, contractor or supplier, licensed by a competent authority to undertake business activities;
“quality and cost based selection” means a procurement method defined in regulation 76(2);
“quotation procurement method” commonly referred to as “proposal procurement method” means a simplified procurement and disposal method which compares price quotations or proposals obtained from a number of providers;
“responsive bid” means a bid which conforms to all the terms, conditions and requirements of the solicitation document without any material deviation, reservation or omission therefrom;
“single envelope submission method” means a one stage single envelope 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;
“standardisation policy” means a policy of standardisation approved by Cabinet through a Cabinet Directive;
“statement of requirements” means documents prepared by a procuring entity providing a correct and competitive description of the subject of the procurement for the purposes of creating fair and open competition; and
“third party procurement provider” means any provider of services to whom procurement or disposal functions of a procuring and disposing entity is contractually assigned.
(1) These Regulations shall apply to all public procurement and asset disposal, except procurement determined by the Board to require a different procurement procedure, for purposes of national security or any other reason the Board may think reasonable.
(2) Disputes regarding the applicability of the Act and these Regulations shall be submitted, in writing, with all supporting documentation, to the Board.
(3) The Board shall decide upon a dispute referred to it under subregulation (2) within 10 days.
(4) The Board shall, by notice published in the Gazette, periodically publish a list of the procuring entities which are subject to the Act and these Regulations.
(1) Where an international agreement requires a procuring entity to use an alternative procurement procedure, such entity shall apply to the Board for 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 Board shall consider and determine whether to approve the application made under subregulation (1), within 10 days of such application.
(3) The decision of the Board rendered in accordance with the provisions of subregulation (2) shall be final and shall not be capable of being reviewed by the Independent Committee.
PART II
Procuring Entities (regs 5-19)
5. Composition of procuring entity
A procuring entity shall be composed of—
(a) an accounting officer or his or her representative; and
(b) the Ministerial Committee; and
(c) a procurement unit established under regulation 11.
6. Powers of a procuring entity
A procuring entity shall be responsible for the management of all procurement activities within its jurisdiction in accordance with the provisions of the Act.
(1) The accounting officer shall, in considering persons for appointment to the Ministerial Committee, recommend to the Board the appointment of persons—
(a) at appropriate levels of decision making;
(b) from more than one discipline;
(c) from different departments; or
(d) with experience in public procurement.
(2) The accounting officer shall have overall responsibility for the execution of the procurement process in the procuring entity and, in particular, shall be responsible for—
(a) procurement planning;
(b) providing a certification confirming the availability of funds to support the procurement activities;
(c) investigating all complaints by providers;
(d) submitting copies of any complaint received and reports of the findings thereof, to the Independent Committee;
(e) ensuring that the implementation of the awarded contract is in accordance with the terms and conditions of the award; and
(f) executing the decisions of the Board.
(3) An accounting officer or any person authorised by him or her shall make a certification as to the availability of funds prior to any procurement activity and before the awarding of the contract.
(4) A certification confirming the availability of funds shall be in the standard form set out in the First Schedule.
8. Composition of Ministerial Committee
(1) Each Ministerial Committee shall be composed of—
(a) a Chairperson;
(b) a Vice-Chairperson;
(c) other members, not exceeding seven, appointed by the Board on the recommendation of the accounting officer, in writing; and
(d) a Secretary, who shall attend meetings, and participate in the deliberations, of the Ministerial Committee, but shall not have the right to vote;
(2) A Ministerial Committee may co-opt advisers to assist it in the discharge of its functions, but the co-opted members shall not vote.
(3) Membership of a Ministerial Committee shall not exceed nine persons.
(4) The accounting officer shall inform the Board of the composition of the Ministerial Committee and the qualifications of its members.
(5) Members of a Ministerial Committee shall be appointed with regard to their technical competence, skills mix and levels of skills required for the discharge of the functions of the Committee.
(6) The Board may, on the advice of the accounting officer, by notice published in the Gazette, amend the composition of a Ministerial Committee.
9. Functions of Ministerial Committee
(1) A Ministerial Committee shall be responsible for—
(a) ensuring compliance with the provisions of the Act and best practices in all procurements; and
(b) liaising directly with the Board on any matter within its jurisdiction.
(2) Without prejudice to the generality of the provisions of subregulation (1), a Ministerial Committee shall—
(a) …
(b) …
(c) preside over and manage public bid openings;
(d) …
(e) …
(f) propose the delegation of authority to a procurement unit; and
(g) provide overall guidance on procurement development within the procuring entity.
10. Meetings of Ministerial Committee
(1) Subject to the provisions of the Act and these Regulations, a Ministerial Committee shall regulate its own procedure.
(2) A Ministerial Committee shall meet at least once a month for the discharge of its functions.
(3) There shall preside at every meeting of a Ministerial Committee—
(a) the Chairperson;
(b) in the absence of the Chairperson, the Vice Chairperson; or
(c) in the absence of the Chairperson and the Vice Chairperson, such member as the members present shall elect from among themselves for the purpose of the meeting.
(4) The quorum at a meeting of a Ministerial Committee shall be four members.
(5) A decision of a Ministerial Committee on any matter shall be by a majority of the members present and voting at the meeting and, in the event of an equality of votes, the Chairperson shall have a casting vote in addition to his or her deliberate vote.
(6) A decision of a Ministerial Committee shall not be rendered invalid by reason only of a vacancy in the membership of the Ministerial Committee or by reason only that a person who was not entitled to sit as a member sat as such a member.
(7) The Secretary shall record the minutes of the proceedings of the Ministerial Committee, but shall not vote at any meeting of the Ministerial Committee.
(8) Where a member is present at a meeting of a Ministerial Committee at which any matter which is the subject of consideration, and in which matter the member has a direct or indirect interest in his or her private capacity, is to be discussed, he or she shall forthwith upon the commencement of the meeting disclose such interest to the Committee, and shall not take part in any consideration or discussion of, or vote on, any question with respect to that matter.
(9) A disclosure made under subsection (8) shall be recorded in the minutes of the meeting at which it is made.
(10) A member who contravenes the provisions of subregulation (8) shall be guilty of an offence.
11. Composition of procurement unit
The accounting officer shall cause to be established a procurement unit staffed at an appropriate level consisting of such number of members as the accounting officer may determine.
12. Functions of procurement unit
A procurement unit shall—
(a) manage all procurement and disposal activities of the procuring and disposing entity, except adjudication and award of contracts;
(b) implement the decisions of the Ministerial Committee;
(c) liaise directly with the Board on all matters pertaining to the Board;
(d) plan the procurement by the procuring entity;
(e) recommend procurement procedures to the procuring entity;
(f) check and prepare statements of requirements;
(g) prepare tender documents;
(h) maintain lists of suppliers;
(i) evaluate or manage the evaluation of bids;
(j) prepare contract documents;
(k) issue approved contract documents;
(l) administer and manage contracts once placed;
(m) arrange payments to contractors;
(n) maintain and archive records of procurement;
(o) prepare monthly reports for the Ministerial Committee;
(p) co-ordinate projects and liaise with the procuring entity’s departments about all other aspects of their procurement;
(q) act as a procurement coordinator for the user department of the procuring and disposing entity;
(r) liaise with the Secretary to the Ministerial Committee to ensure that submissions to the Ministerial Committee are correct and submitted on time;
(s) recommend procurement procedures to the Board or Ministerial Committee;
(t) recommend to the Board or Ministerial Committee the type of documents to be used for a procurement before the issuance of a solicitation document; and
(u) recommend technical, financial or combined technical and financial evaluation reports to the Board or Ministerial Committee for adjudication and award of contracts.
13. Powers of procurement unit
(1) In the discharge of its functions, a procurement unit may—
(a) nominate persons to evaluation committees for approval by the accounting officer;
(b) obtain such independent advice as may be necessary;
(c) ensure compliance with the provisions of the Act, Regulations and best practices;
(d) manage bid proposals and pre-qualification submissions and make recommendations to the Board or its committees;
(e) advertise tender opportunities;
(f) sell tender documents;
(g) issue tender clarifications; and
(h) receive tenders.
(2) A procurement unit shall co-ordinate submissions to the Ministerial Committee concerning its disposal and procurement needs as well as the needs of any user department.
14. Procedure in case of disagreement
(1) Where a procurement unit disagrees with the Ministerial 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 its disagreement and may—
(a) submit those reasons to the Ministerial Committee for review; and
(b) if the matter is not satisfactorily resolved within a period of five days following the decision of the Ministerial Committee, request an independent review on the matter, by the Board.
(2) A member of a procurement unit shall not, while he or she is a member of the procurement unit, sit in any Ministerial Committee.
15. Maintenance of independence
Accounting officers, procurement units and Ministerial Committees shall act independently in relation to their respective functions and powers.
16. Delegation of powers by the accounting officer
(1) An accounting officer may delegate the procurement function of a procuring entity to another procuring and disposing entity or to a third party procurement provider, which shall be based on—
(a) thresholds established by the Board and which shall be issued by the Board;
(b) the sub-division having the required number of personnel to allow it to set up the structures necessary to execute the procurement function as in the parent procuring entity; and
(c) the sub-division having the capacity to fulfil the recording, reporting and accountability requirements which the parent body is required to comply with.
(2) Notwithstanding the delegation referred to in subregulation (1), the accounting officer shall remain accountable for all decisions taken by the procuring entity.
(1) A procuring entity shall determine the need, in each particular case, to acquire third party procurement services in the discharge of its procurement functions.
(2) A procuring entity shall, in making an invitation for third party procurement services—
(a) request applications for the rendering of such services from among firms registered with the Board;
(b) follow the procedures laid down in the guidelines; and
(c) secure prior written assurance of the accounting officer that funds are available, to pay in full and on time for such services.
18. Records of procuring entity
(1) A procuring entity shall maintain records of its procurement proceedings for a period of seven years from the later date of any of the following—
(a) the decision to terminate the procurement action; or
(b) the contract award; or
(c) completion of the contract or the settlement of the dispute, whichever comes earlier, and thereafter for an additional year where a contract is ongoing or is challenged.
(2) The records of the procurement process of a Ministerial Committee shall be open for inspection by the Board during working hours.
19. Procedure for Defence Force, Police Service etc.,
(1) Procuring entities of the Defence Force, Police Service and other security organs of the State may conduct their procurement through an open or restricted list basis.
(2) Where the procuring entities referred to in subregulation (1) procure through restricted bidding, they shall—
(a) obtain prior written approval of the Board;
(b) first commit themselves to a progressive reduction in procurement through the restricted list; and
(c) obtain the consent of the Board to the procurement procedures that shall apply to each category of procurement activity on the restricted lists.
(3) Unless otherwise provided under the Act or these Regulations, the Defence Force, Police Service and other security organs of the State shall comply with the provisions of these Regulations.
PART III
Public Procurement Rules and Process (regs 20-39)
20. Preference and reservation
(1) Where an international agreement or preference policy is in place which contains provisions favourable to citizen and local providers, the Board or its committees shall bring the agreement or the policy to the attention of the providers and it shall cause full advantage to be taken by such providers of the opportunities contained in such provisions.
(2) Any agreements favourable to citizen and local providers shall be brought to the attention of such providers through a notice in a newspaper of wide circulation in Botswana, and information on the same shall be contained in the bidding documents.
(3) A procuring entity may decide to limit participation in a procurement activity to a category of providers, so as to attain—
(a) development of local or citizen capacity; or
(b) compliance with provisions in agreements requiring that part of the procurement contracts are subcontracted to such providers.
(4) When a procuring entity decides to restrict participation in a procurement proceeding on the basis of nationality, it shall include—
(a) a statement to that effect in either the bid document or pre-qualification notice, or in both; and
(b) information on how either the reservation or preference, 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
(c) such other preferences as the Government may determine.
(7) The Board may terminate a contract awarded where evidence is adduced to prove that the contract was awarded contrary to the requirements of this regulation with respect to citizen and local provider empowerment.
(1) All procurement records, where appropriate, shall contain the following documents—
(a) a request to initiate procurement proceedings;
(b) a copy of the published advertisement or shortlist;
(c) pre-qualification and bidding documents and any amendments or clarifications thereto;
(d) records of bid openings;
(e) copies of records of all bids evaluated and any clarification responses;
(f) an evaluation report;
(g) a contract document;
(h) all documents related to the contracts management, including, but not limited to, contract performance and payment, warranties, bank guarantees and any claims;
(i) minutes of any meetings related to the procurement, including negotiations;
(j) all correspondence between the procuring entity and bidders;
(k) all submissions to the Board or its committees; and
(l) all decisions of the Board related to the procurement, including, but not limited to—
(i) the choice of procurement procedure,
(ii) the approval of bidding documents,
(iii) the approval of evaluation reports,
(iv) the contract award,
(v) the approval of contract documents and contract amendments, and
(vi) any decision to suspend or cancel procurement proceedings.
(2) Records shall be maintained on all procurement proceedings for the periods specified in the National Archives Act (Cap. 59:04).
(1) The language that shall be used in all bidding documents shall be English, and it shall be so specified in the documents.
(2) Subject to the provisions of these Regulations—
(a) minutes shall be taken at meetings that include negotiations authorised by the Board and its committees, between a procuring entity and either the bidders or contractors, or both; and
(b) any agreement concluded at a meeting referred to in paragraph (a) shall be confirmed in writing.
(1) A procuring entity or a disposing entity may—
(a) proceed to issue a bid or invitation to tender without the approval of the Board where the procuring or disposing entity was required to proceed with the bid or invitation due to an urgent requirement or emergency arising from special circumstances, and the procurement shall be sanctioned by the Board in accordance with section 44 of the Act; or
(b) where there is insufficient time to follow the established procedures for procurement, make a request to the Board, in writing, stating the reasons for the urgency and justification for the departure from the established procedures.
(2) An emergency procurement may be permitted only for emergencies which could not have been foreseen by the procuring entity and which are not the result of delays by or within the procuring entity.
(3) Where emergency procurement is permitted in situations which could have been foreseen or are the result of delays by or within the procuring entity, a plan shall be prepared by the procuring entity to indicate the steps to be taken to prevent a repeat of similar circumstances.
24. Splitting of procuring requirements
(1) A procuring entity shall not split up procurement requirements for works, services or supplies which could be procured on a single contract, for purposes of avoiding a method of procurement required in Part V.
(2) Each procurement entity shall ensure that for each procurement the method of procurement utilised is the open unrestrictive competitive bidding, unless otherwise specified by the Board.
25. Aggregation of requirements
(1) Procurement requirements shall be aggregated for all departments of the procuring entity for the financial year or other appropriate period of time, whichever is applicable.
(2) Supplies and works in common use by more than one procuring entity shall be subject to common procurement, co-ordinated by the Board or any of its committees.
(1) Procurement for framework contracts shall be subject to all the provisions of these Regulations, except where specified otherwise in this regulation or the guidelines.
(2) A procuring entity shall use the appropriate method of procurement for the procurement of works, services or supplies under a framework contract in accordance with the provisions of Part VI.
(3) A procuring entity shall use the standard documentation provided by the Board for procurement under a framework contract.
(4) A framework contract shall—
(a) be concluded for a minimum period of 12 months; and
(b) have contract prices fixed and not subject to variation for the duration of the contract.
(5) A procuring entity shall use estimated quantities or values when concluding a framework contract and shall not make a commitment to purchase the full quantity or value.
(6) Following the award of a framework contract, specific requirements during the period of the framework contract shall be procured through the placement of call-off or delivery orders in accordance with the provisions of the framework contract.
27. Initiation of procurement requirements and confirmation of funding
(1) Procurement requirements shall be stated in the standard Form provided by the Board and set out in the Second Schedule.
(2) A procuring entity shall request for and obtain the consent of the Board before the use of a format other than that provided by the Board.
(3) The accounting officer or any authorised official shall provide a certification confirming the availability of funds, as evidence of the availability of budgeted or supplementary funds for the current financial year, the procurement or allocation for subsequent years.
(4) The signature of the accounting officer or authorised official, on the standard form stating that the procurement requirements provided by the Board have been met, shall be evidence of approval of procurement requirements.
(5) The accounting officer shall designate a person as an authorised official for the purposes of this regulation in accordance with internal procedures, but the accounting officer shall retain overall responsibility for procurement for the procuring entity.
(1) A pre-qualification process may be used under open international bidding or open domestic bidding to obtain a shortlist of bidders who have the proven capability and resources to perform the contract satisfactorily.
(2) A pre-qualification process may be used where the supplies, works or services required are highly complex or specialised or require detailed design.
(3) A pre-qualification process shall be open to all providers, who shall be invited to participate in the process through an advertisement of a prequalification notice containing a statement as provided in subregulation (5), published in a newspaper of wide circulation in Botswana.
(4) A procuring entity shall commence a pre-qualification exercise by submitting a request for the pre-qualification to the Board, the Ministerial Tender Committee or District Tender Committee, as the case may be.
(5) A pre-qualification notice shall contain a statement of the scope of the procurement, clearly giving the necessary details of the requirements and the criteria for pre-qualification, and such pre-qualification notice shall be vetted by the Board or its committees, as the case may be.
(6) The pre-qualification period shall be no less than 14 days.
(7) A procuring entity shall require providers to submit sealed, written pre-qualification applications accompanied by such documents as the procuring entity may require, including the details contained in the pre-qualification form set out in the Third Schedule.
(8) A provider shall qualify for the pre-qualification bid on the basis of having the highest capability and the resources for the particular procurement, taking into account—
(a) its experience and past performance on similar contracts;
(b) its capability with respect to personnel, equipment and manufacturing or construction facilities;
(c) its financial position; and
(d) any other relevant criteria specified in the pre-qualification document.
(9) The assessment of pre-qualification submissions shall be in accordance with the requirements and criteria stated in the invitation for prequalification.
(10) After the assessment referred to in subregulation (9), the procuring entity shall address an invitation to bid to—
(a) all providers who submitted pre-qualification applications and who meet the specified pre-qualification criteria; or
(b) a stated number of bidders, which number shall be appropriate to ensure effective competition from among the bidders who submitted pre-qualification applications and who meet the pre-qualification criteria.
(11) Where an invitation to bid is not addressed to all pre-qualified bidders, the bidders selected to bid are those who satisfy the minimum cut-off mark specified in the bidding documents.
(1) A statement of requirements shall include—
(a) generic, functional or performance specifications of the items to be procured;
(b) the terms of reference for the particular procurement activity;
(c) a brief;
(d) the scope of works for a construction contract;
(e) design drawings;
(f) bills of quantities or the equivalent;
as may be appropriate, giving a correct and complete description of the subject of the procurement for the purposes of creating fair and open competition.
(2) A statement of requirements shall be used to inform bidders of the procuring and disposing entity’s requirements and to determine how closely and effectively a bidder can meet these requirements.
(3) The description, in a statement of requirements, shall be prepared in such a way as to ensure that the works, services or supplies are fit for the purpose for which they are being purchased and are of appropriate quality.
(4) A statement of requirements shall use standard specifications issued in terms of the Act and these Regulations.
(1) A procuring entity shall state its procurement requirement for supplies, works or services—
(a) in writing, in the appropriate standardised bidding documents provided by the Board; and
(b) in accordance with the type, value and relative complexity of the particular procurement requirement.
(2) Any solicitation document issued by the procuring entity shall include—
(a) an invitation to bid and instructions on the—
(i) preparation and submission of the bid,
(ii) date, time and address for receipt of bids, and
(iii) place and time of bid opening;
(b) a bid form;
(c) the general conditions of contract or a statement of the general conditions that will apply;
(d) special conditions of contract;
(e) a statement of requirements;
(f) a schedule of requirements and price schedule;
(g) a statement of the qualification documentation to be provided by the bidder;
(h) the contract form or a statement of the contract or order documents that will apply; and
(i) the format for securities, guarantees or other documents of security, where required.
(1) A procuring entity may hold pre-bid meetings to—
(a) allow potential bidders to either seek clarification; or
(b) have access to project sites.
(2) Arrangements for pre-bid meetings shall be included in the bidding documents.
(3) A potential bidder shall be given not less than 14 days notice of the pre-bid meetings, and, where appropriate, such notice period shall be extended to accommodate international methods of procurement.
(4) A pre-bid meeting shall be held for such time as is reasonable for the particular bid, to enable bidders to consider any additional information that may be necessary in preparing their bids.
(5) The procuring entity shall prepare minutes for all pre-bid meetings and copies of the minutes shall be provided to all providers who purchased or were issued with the bidding documents.
(6) Pre-bid meetings shall be managed by the procuring entity.
(1) The method for selection of bidders to be invited to bid shall be in accordance with the provisions of Part IV and shall be—
(a) by publication of a bid notice;
(b) by development of a shortlist; or
(c) on a sole provider basis.
(2) A bid notice shall be published in at least one newspaper of wide circulation, in the Gazette and in any electronic or print media as the procuring entity may consider appropriate.
(3) A tender notice and an invitation to tender shall be in the standard form approved for use by the Board.
(4) A short list of bidders shall be based on written expressions of interests and shall include bidders who would have met the pre-determined cut-off mark selected on the basis of—
(a) a provider’s performance record on previous projects;
(b) market knowledge of providers, where available; or
(c) whether the provider is on the register of contractors maintained by the Board.
(5) Where a successful provider is to be selected from a shortlist of bidders, the selected provider shall be the best qualified and his or her bid determined as offering value for money to the extent practicable.
(6) Selection of bidders from a register of providers shall be conducted to allow for equal opportunity of selection to all registered providers.
(1) The bidding period shall be such length of time as is necessary to accommodate the—
(a) location of short-listed or potential bidders and the time required for delivery or transmission of their bids;
(b) level of detail required in a bid; or
(c) anticipated duration of the procurement process.
(2) Unless otherwise determined by the Board, the minimum bidding period specified shall be—
(a) six weeks, in the case of open international competitive bidding;
(b) four weeks, in the case of national competitive bidding; and
(c) two weeks, in the case of selective tendering on the basis of a shortlist.
34. Clarification of bidding documents
(1) Bidding documents shall stipulate the date after which bidders may not seek clarification of the bidding documents.
(2) The date to be stipulated under subregulation (1) shall be determined to allow adequate time for all bidders to receive and study the bidding documents.
(2A) A procuring entity shall respond to bidders promptly or within a reasonable time of receipt of a request for clarification of bidding documents from a bidder, to enable bidders to incorporate the clarification in their bid proposals.
(3) Any addendum to a bidding document shall be communicated promptly, in writing, to all bidders who purchased or were issued with bidding documents, in order to provide for adequate opportunity for bidders to seek clarification and to obtain necessary responses in accordance with regulation 34(1).
(4) An addendum to a bidding document shall be issued in writing and the same information shall be sent to all prospective bidders.
(5) Any extension of a bidding period shall be communicated promptly, by publication of a notice in the Gazette.
(6) In the event of a conflict between the content of the information contained in the tender notice and that which is contained in the bidding document, the information contained in the bidding document shall take precedence.
(1) A bid shall be structured in the format prescribed in bidding documents approved by the Board.
(2) The procedure for signing and authorising a bid by the bidder shall be as set out in the bidding documents.
(1) Bidding documents shall contain instructions on the method of bid submission, which shall be—
(a) a one-envelope submission, in which a tender document containing the tenderers financial and technical offer, is submitted together in one sealed envelope; or
(b) a two-envelope submission, in which the financial offer from the tenderer is placed in one sealed envelope marked Financial Offer, and the technical offer is placed into a second sealed envelope marked Technical Offer, and both envelopes are placed into a third envelope which is sealed.
(2) Bidding documents shall state that bids shall be submitted in outer envelopes, securely sealed in such a manner that opening and resealing cannot be achieved undetected.
(3) Bidders may use their preferred method of envelope sealing.
(4) The Board or a procuring or disposing entity shall reject any envelope, at any bid opening, that is not sealed in such manner as is stated in subregulation (2).
(5) Bidding documents shall contain instructions on the details of labelling and references to be written out on each envelope which shall include—
(a) the procurement reference number;
(b) the name, telephone number and postal address of the bidder;
(c) technical or financial information where one or two envelope submission methods are used; and
(d) the instruction that the bid shall not be opened before the time and date set for the bid opening.
(1) Bidding documents shall contain instructions that a bidder may—
(a) withdraw his or her bid, in accordance with the provisions of the bidding documents by giving notification, to the Board, of the withdrawal of the bid, which notification shall be authorised and submitted in the same manner the bid was submitted;
(b) modify his or her bid; or
(c) replace his or her bid,
at any time before the deadline for submission of bids.
(2) A notification to withdraw a bid shall be opened, read out and recorded at the bid opening, in accordance with the guidelines.
(3) The procuring entity shall specify in bidding documents, the procedure and deadline for withdrawal, modification or replacement of bids, which shall be the same as the deadline for submission.
(4) A bidder withdrawing his or her bid shall, in writing, notify the procuring and disposing entity of the withdrawal, and the withdrawal letter shall be authorised and submitted in the same way as the bid, in an envelope clearly marked “WITHDRAWAL”.
(5) A bidder withdrawing his or her bid may submit a new bid in accordance with the bid submission instructions in the bidding documents.
(1) All bidding documents shall contain instructions for the time, date and place for bid submission.
(2) Where the closing date falls on a Saturday, a Sunday or a public holiday, tenders may be lodged until 10 a.m. the following working day.
(3) Tender documents submitted by courier shall only be acceptable if they bear the appropriate tender number and description and the inscription “Tender Documents. Not to be opened before ……” on the face of the package.
(4) In addition to any other requirement in the bidding document, a bid submitted after the date and time of submission shall be returned, unopened, to the bidder immediately or after the bid opening with the words “Late Tender”, together with the date and time on which the bid was so received.
(5) Extension of the tender closing date shall only be granted upon sufficient evidence by the procuring entity, to the Board, the Ministerial Committee or the District Committee, as the case may be, and only where there is sufficient time to publish an amending notification before the original closing date.
(6) The procedure for the opening of bids, which shall be in accordance with the provisions of Parts III, IV and V and the guidelines, shall require—
(a) a public bid opening to be witnessed by bidders representatives, who choose to attend; or
(b) an internal bid opening to be witnessed by at least three members of the procuring entity’s staff, which shall include at least one member of the Ministerial Committee.
(7) For a bid opening referred to in subregulation (6), the procuring entity shall—
(a) keep a record of the opening on the prescribed form, which shall be signed by all members of the procuring entity or procurement unit attending; and
(b) in the case of an internal bid opening, avail to bidders representatives a copy of the record at such nominal fee as the Board may determine.
(1) Bidding documents shall—
(a) state the minimum qualifications required for a bid; and
(b) require each bidder to produce the required documentary evidence as proof that they qualify for the bid.
(2) A bidder’s ability to meet the required qualifications shall form an integral part of the evaluation process.
PART IV
Evaluation Processes (regs 40-53A)
(1) The accounting officer shall appoint an evaluation committee which shall comprise not less than three members.
(2) Where members of the Evaluation Committee disagree on the results of an evaluation, the findings and recommendations of the majority shall be stated in the evaluation report.
(3) The evaluation report shall contain a statement of any disagreement and the reasons therefor, further discussions held on the issue and the names of those holding the alternative views.
(4) The Evaluation Report shall be signed by all members of the Evaluation Committee in attendance.
(5) An Evaluation Report shall be in the format specified by the Board.
(1) Notwithstanding the other provisions of this regulation, a procuring entity shall correct purely arithmetical errors in a bid document on the following basis—
(a) if there is a discrepancy between the unit price and the total price that is obtained by multiplying the unit price and the quantity, the unit price shall prevail, and the total price shall be corrected accordingly; or
(b) if there is a discrepancy between the amount in words and the amount in figures, the amount in words shall prevail.
(2) Bidders shall be promptly notified of any correction of errors made under subregulation (1)(a), and, where the bidder does not accept such correction, his or her bid shall be rejected.
(3) The procedure for correction of arithmetic errors shall be stated in the bidding documents.
(4) Notwithstanding the provisions of this regulation, a procuring entity may correct other minor errors or oversights, in a bid document, that are capable of being corrected without changing the substance of the bid.
(5) Corrections made to a bid document shall be quantified and taken into account in the evaluation, wherever possible.
42. Choice of evaluation method
(1) Each evaluation to be performed under these Regulations shall be performed in accordance with such procedure, as is set out in regulations 43 to 48, as may be relevant to the particular evaluation and in accordance with the provisions of Part V.
(2) A procuring entity shall seek the consent of the Board to use an evaluation method other than one given in these Regulations.
43. Evaluation by quality and cost based selection
(1) The quality and cost based selection evaluation method shall be conducted as follows—
(a) both the quality and the cost of bids shall be taken into account in a process under which technical bids are evaluated without access to financial bids; and
(b) the relative weight to be given to the quality and cost components of the evaluation shall depend on the nature of the assignment and shall be stated in the invitation to bid.
(2) A bid submitted under the quality and cost based selection evaluation method shall be submitted under the dual envelope submission method and evaluated to determine the—
(a) quality, with regard to a technical bid, in accordance with—
(i) an evaluation against set criteria on a merit point system to determine the total technical score for the technical bid received, and
(ii) the total scores determined compared to the minimum technical score;
(b) the total weighted cost score, with regard to a financial bid, where the bidder reached the minimum technical score; and
(c) the bidder obtaining the highest total score, who shall be recommended for the award of the contract.
(3) The procedure for the quality and cost based selection evaluation of a technical bid shall be conducted in three stages, as set out in Part I of the Fourth Schedule.
(4) In this regulation, quality and cost based selection means an evaluation methodology that takes into account both the quality and the cost of bids in a process under which technical bids are evaluated without access to financial bids.
44. Evaluation by quality based selection
(1) Under the quality-based selection evaluation method the evaluation of—
(a) a technical bid shall be conducted against set criteria on a merit point system to determine the best technical bid without access to financial bids;
(b) the quality of a bid shall be the primary factor to be considered; and
(c) cost shall apply only to the best technical bid.
(2) The procedure for the quality-based selection evaluation of a technical bid shall be conducted in three stages, as set out in Part II of the Fourth Schedule.
(3) In this regulation quality-based selection means an evaluation method that uses quality as the primary factor in a process under which technical bids are evaluated without access to financial bids and a financial evaluation is undertaken only for the best technical bid.
45. Evaluation by fixed budget selection
(1) Under the fixed budget selection evaluation method, the procuring entity shall indicate its available budget, and evaluation shall be considered as follows—
(a) a bidder shall be required to provide, within the stated budget, the best possible technical and financial bids, in separate envelopes; and
(b) the bidder with the evaluated technical bid of the highest quality, which is within the stated budget, shall be recommended to be awarded the contract.
(2) The schedule of requirements (otherwise referred to, in the bid documents, as the terms of reference), prepared by the procuring entity, shall contain all the necessary detail to portray the sufficiency of the budget for the performance, by a bidder, of the expected tasks as shall be contained in the contract.
(3) The procedure for the fixed budget selection evaluation of a technical and financial bid shall be conducted in three stages, as set out in Part III of the Fourth Schedule.
(4) In this regulation “fixed budget selection” means an evaluation method that recommends the bidder with the best technical bid which is within the budget.
46. Evaluation by least cost selection supplies – and works
(1) The least cost selection-supplies and works evaluation method shall be used to identify the lowest priced bid, which meets all the commercial and technical requirements of the procuring entity.
(2) Unless otherwise expressly stated in the bidding document, a bid for the least cost selection-supplies and works method shall require the use of a single envelope submission method.
(3) Recommendation shall be made for the award of contract to the bid which is—
(a) qualified;
(b) technically compliant;
(c) lowest priced; and
(d) responsive.
(4) The procedure for the least cost selection-supplies and works evaluation of a technical bid shall be conducted in three stages, as set out in Part IV of the Fourth Schedule.
(5) In this regulation, and for the purposes of regulation 47, “least cost selection-supplies and works” means an evaluation method that recommends the lowest price bid which meets the commercial and technical requirements of the procuring and disposing entity.
47. Evaluation by least cost selection – services
(1) The least cost selection-services evaluation method shall be used to identify the lowest priced bid, which meets all the commercial and technical service requirements of the procuring entity.
(2) The least cost selection-services evaluation method shall require the use of separate sealed envelopes for submission of technical and financial bids.
(3) The procedure for the least cost selection-services evaluation of a technical bid shall be conducted in three stages, as set out in Part V of the Fourth Schedule.
48. Evaluation by qualification selection
(1) The qualification selection evaluation method shall be used for small assignments, of costs as may be determined by the procuring and disposing entity, for which the need for preparing and evaluating competitive bids is not justified.
(2) The procuring entity, for the purpose of soliciting bidders under the qualification selection method shall—
(a) follow a two stage process;
(b) prepare the terms of reference;
(c) request bidders to supply expressions of interest and information concerning their experience and competence relevant to the assignment; and
(d) establish a short-list.
(3) The procedure to be followed for the qualification selection evaluation method shall be conducted in two stages, as set out in Part VI of the Fourth Schedule.
(4) In this regulation “qualification selection” means a method of procurement used in the selection of a bidder based exclusively on the quality of the proposal without reference to price.
(1) Any amendment to a bidding document by a bidder, including an amendment of the bid price, shall not be permitted after the date and time of bid closing.
(2) A procuring entity shall reject the bid of any bidder who attempts to make or who has made amendments to his or her bid, as provided in subregulation (1), after the date and time of bid closing and the matter shall be reported to the procuring entity or the Board.
(3) Every bidding document shall contain the prohibition against amending the bid as provided in subregulations (1) and (2).
50. Clarification of bids received
(1) A procuring entity may, in writing, request clarification on any bid received prior to tender closure from any person connected to the bid and such person shall, as soon as practicable, provide a written response.
(2) No amendments to the substance of the bid, including amendment of the bid price, shall be sought, offered or permitted after the clarification referred to in subregulation (1).
51. Negotiations for open, restricted and quotation biddings
(1) No negotiations shall be held by a procuring entity with any bidder who has tendered a bid to be considered under—
(a) open bidding;
(b) restricted bidding; or
(c) quotations procurement,
until after a decision on the preferred bidder has been made and approval of the negotiation document has been given by the Board, Ministerial Committee, or District Tender Committee under subregulation (2).
(2) The Evaluation Committee shall give a recommendation for an approval of the negotiation document by—
(a) producing an evaluation report containing a clear recommendation for an award of contract, and
(b) providing details of the nature of the proposed negotiations, listing the points that are to be clarified or discussed and the objectives to be attained in the negotiation document; and
(c) having the accounting officer or his or her representative approve the negotiation document prior to any negotiations taking place.
(3) The procuring entity shall be represented at the negotiations, held with the preferred bidder, by at least three staff members who may negotiate the terms of the contract, but such staff members shall not commit the procuring entity to any contractual terms prior to confirming any such terms with the accounting officer or his or her representative.
(4) The procuring entity shall submit minutes of the negotiations and the evaluation report, in writing, to the Board, Ministerial Committee or District Tender Committee on the success of the negotiations in attaining the objectives set out on the negotiation document.
(5) The Board, Ministerial Committee or District Tender Committee may—
(a) approve the outcome of the negotiations in their entirety;
(b) request further negotiations on specific points; or
(c) reject and cancel the negotiations in their entirety.
(6) The results of any approved negotiations shall be incorporated into the contract document.
(7) No condition of award shall require the bidder, under any circumstances, to—
(a) undertake any further responsibility not specified in the bidding documents; or
(b) amend the bid price or otherwise modify the bid.
(8) The following requests, communications or confirmation shall be in writing—
(a) request for amendments to the terms of a bid affecting the responsibilities and tasks defined in the bidding documents; and
(b) communication or confirmation of all subsequent and supplementary discussions or meetings.
52. Negotiations under direct procurement method
(1) A procurement entity shall not hold negotiations to consider a bid under the direct procurement method unless a written bid has been received and evaluated.
(2) Approval of the negotiation document shall be given in accordance with the following procedure—
(a) the procuring entity shall issue a written bidding document based on the standard documentation, modified, as necessary, to suit the requirements, the value and the circumstances of the particular procurement;
(b) a bidder shall be required to submit a written bid in accordance with the terms of the bidding document;
(c) the Evaluation Committee shall evaluate the bid received to determine its compliance with the bidding document and undertake an analysis of value for money of such bid by comparing the bid price with prices previously obtained through competitive procedures in respect of similar procurement, where applicable, or a breakdown analysis of current component costs for base items, freight and insurance elements and taking into account the circumstances and value of the procurement;
(d) the procuring entity shall provide details of the nature of the proposed negotiations listing the points that are to be clarified or discussed and the objectives to be attained in a negotiation document; and
(e) the procuring entity shall obtain the Board’s approval of the negotiation document prior to any negotiations taking place.
(3) The procuring entity shall be represented, at the negotiations held with the bidder, by at least three staff members who may negotiate the terms of the contract, but such staff members shall not commit the procuring entity to any contractual terms prior to confirming any such terms with the Evaluation Committee.
(4) The staff representing the procurement entity, at the negotiations, shall submit minutes of the meeting for approval and report, in writing, to the Board or its committees, on the success of the negotiations in attaining the objectives set out on the negotiation document.
(5) The Board or any of its committees may—
(a) approve the outcome of the negotiations in their entirety;
(b) request further negotiations on specific points; or
(c) reject and cancel the negotiations in their entirety, and shall give reasons for the action taken.
(6) The results of any approved negotiations shall be incorporated into the contract document.
(1) The bidding documents shall state the procedure to be followed for the award of contract.
(2) The exchange of letters of offer and acceptance between the procuring entity and the successful bidder shall constitute the act of placement of the contract.
(3) No communication in any form, that would bind a procuring entity to a contract, shall be issued by the procuring entity unless such communication has received the prior approval of the Board, its committees or such other authority or person to whom the Board has delegated the power to approve communications.
(4) Each procuring or disposing entity shall conclude a contract by the use of—
(a) the standard form of conditions of contract approved for use by the Board; or
(b) the contract documents stipulated in the tender documents if the documents referred to in paragraph (a) cannot be used.
(1) A procuring or disposing entity shall not cancel a procurement activity without the prior approval of the Board or its committees.
(2) The Board or its committees shall not authorise the cancellation of any tender awarded by a procuring or disposing entity unless the Board or its committees are given sufficient justification for the cancellation of the tender.
(3) The Board or its committees shall, prior to the cancellation of a tender ensure that—
(a) the circumstances claimed by procuring or disposing entity for the cancellation of a tender exist; and
(b) the circumstances claimed by the procuring or disposing entity are beyond the control of the procuring or disposing entity.
(4) Where the Board or its committees have approved a tender cancellation, the Board or its committees shall publish a tender cancellation notice in one newspaper of wide circulation in Botswana and in the Gazette.
PART V
Choice of Procurement Methods (regs 54-61)
54. Choice of procurement methods
(1) A procuring and disposing entity shall use such procurement method as is provided for in these Regulations.
(2) The choice of procurement method shall be on the basis of the—
(a) estimated value of the requirements; or
(b) circumstances pertaining to the requirement.
(3) The estimated value of the requirement shall be the main criterion in determining the choice of procurement method and the choice shall be made in accordance with the guidelines.
(1) Except as provided for in these Regulations, a procuring or disposing entity shall use the open domestic bidding method.
(2) A procuring and disposing entity may request the Board for permission to use a procurement procedure other than the open domestic bidding method where the circumstances for the bid are not provided for under the provisions of these Regulations.
(3) The open domestic bidding method shall be open to all bidders following the advertisement of a bid notice in the Gazette and at least one newspaper of wide circulation in Botswana.
(4) The Board, in consultation with the Ministerial Committee or the District Committee, as the case may be, shall, in line with the provisions of the procurement, determine the cost of bidding documents that are to be sold to prospective bidders.
(5) Nothing shall prevent a resident foreign or international bidder from participating in the open domestic bidding subject to registration requirements.
56. Open international bidding
(1) The open international bidding method may be used in place of the open domestic bidding, with the prior written approval of the Board, where—
(a) optimal competition may be enhanced with foreign bidders participation;
(b) non-resident foreign bidders would increase value for money; or
(c) the technical complexity of the procurement requirement requires the participation of non-resident foreign bidders.
(2) An advertisement for the submission of bids for the open international bidding method shall be published in the Gazette and in the appropriate foreign or international publications or professional or trade journals with a wide international circulation and shall be open to all bidders.
(3) The Minister, in consultation with the Board, shall, in compliance with the provisions of the procurement guidelines, determine the cost of bidding documents that are to be sold to prospective bidders.
(4) Nothing shall prevent a domestic bidder from participating in an open international bidding.
57. Restricted international bidding
(1) The restricted international bidding method may only be used with the prior written authority of the Board, where—
(a) the supplies, works or services are available only from a limited number of providers;
(b) there is insufficient time for an open bidding procedure due to an emergency situation;
(c) the estimated value of the procurement does not exceed the threshold stated in the guidelines;
(d) other exceptional circumstances justify a departure from open bidding; or
(e) foreign providers are included in the short-list of bidders.
(2) The invitation to bid under subregulation (1) shall be addressed to a limited number of potential bidders without advertising the opportunity in a bid notice in accordance with regulation 56(2).
(2A) The Minister, in consultation with the Board, shall, in compliance with the provisions of the procurement guidelines, determine the cost of bidding documents that are to be sold to prospective bidders.
58. Restricted domestic bidding
(1) The restricted domestic bidding method may be used where—
(a) the supplies, works or services are available only from a limited number of providers;
(b) there is insufficient time for an open bidding procedure due to an emergency situation;
(c) the estimated value of the procurement does not exceed the threshold stated in the procurement; or
(d) other exceptional circumstances justify a departure from open bidding.
(2) The invitation to bid under subregulation (1) shall be addressed to a limited number of potential bidders without advertising the opportunity in a bid notice in accordance with regulation 56(2).
(2A) The Minister, in consultation with the Board, shall, in compliance with the provisions of the procurement guidelines, determine the cost of bidding documents that are to be sold to prospective bidders.
59. Quotations proposals procurement
(1) The quotations proposals procurement method may be used where—
(a) there is insufficient time for an open or restricted bidding procedure due to an emergency situation;
(b) the estimated value of the procurement does not exceed the threshold stated in the guidelines; or
(c) other exceptional circumstances justify a departure from open or restricted bidding.
(2) In quotations proposals procurement, a written bidding document is addressed to a limited number of potential bidders without publicly advertising the opportunity.
(3) A procuring entity shall obtain at least five bids as far as is practicable.
(1) The micro procurement method may be used where the value of goods, services or works to be procured does not justify a competitive procedure or the value is within the threshold relating to micro procurement.
(2) In the micro procurement method, the selection of a supplier may be conducted on a sole supplier basis without competition and without the requirement of the following—
(a) bidding documentation;
(b) written bid; and
(c) signed contract document.
(3) The procuring 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.
(4) The procuring entity shall be responsible for ensuring that value for money is obtained to the extent practical under this procurement method.
(5) Any person responsible for micro procurement made under this regulation shall report such procurement to the Ministerial Committee within 30 days of such procurement.
(1) The direct procurement method may be used where the selection of supplier is conducted on a sole supplier basis without competition, such as where—
(a) there is insufficient time for any other procurement method due to an emergency situation;
(b) the supplies, works or services are available from only one provider;
(c) an existing contract could be extended for additional supplies, works or services of a similar nature and no advantage could be obtained by further competition, provided the prices on the extended contract are reasonable;
(d) additional supplies, works or services are required to be compatible with existing supplies, works or services and it is advantageous or necessary to purchase the additional supplies, works or services from the original supplier, if the prices of the additional contract are reasonable;
(e) it is essential or preferable to purchase additional supplies, works or services 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), the value of the new supplies, works or services shall generally be less than the value of the original or existing contract and the original contract shall have been awarded through a competitive process.
(3) A procuring entity shall use the appropriate documents, from the documentation issued by the Board, modified as necessary for the requirements of the procurement.
(4) A direct procurement contract shall be in writing in a contract form as provided in the documentation referred to under subregulation (3).
(5) The procuring entity shall not commence any procurement process under the direct procurement method prior to the Board signifying its—
(a) acceptance of the full justification given by the Contracts Committee for the necessity for the use of method; and
(b) approval of use of the method.
(6) The procurement process, under direct procurement, shall be subject to the procurement requirements, as far as practicable, provided in Part III.
(7) The Board may award a bid for a procurement under this regulation if it is satisfied that the procurement has been sufficiently demonstrated to be of value for money.
PART VI
Procurement of Supplies (regs 62-68)
(1) In this regulation, policy of standardisation means a policy of standardisation which has been approved by Cabinet as contained in a Cabinet Directive currently in force.
(2) A procuring and disposing entity shall not use a policy of standardisation for any of its procurement requirements without the prior approval of the Board.
(3) The Board shall approve a standardisation policy for use by a procuring and disposing entity, that has been approved by Cabinet in relation to the proposed procurement activity and which shall be accompanied by statements verifying—
(a) the technical, economic and logistical case for standardisation;
(b) the case for the selection of the proposed standardised supplies, including their advantages over alternative supplies;
(c) projections for future procurement of the object of standardisation;
(d) plans to ensure transparency and value for money in the procurement of the standardised supplies; and
(e) any other information relevant to the proposed standardisation policy.
(4) Upon due consideration of a recommendation made to the Board under subregulation (2), the Board may—
(a) approve the recommendation; or
(b) reject the recommendation, and state, in writing, the grounds for its approval or rejection thereof.
(5) An approval for the use of a policy of standardisation shall be for such period as the Board may determine, after which period the policy shall be reviewed by the Board.
(6) Where a procuring entity determines the need for the continued use of a policy of standardisation after the period of approval has expired, the Accounting Officer shall submit the following information to the Board, at least 14 days before such expiration, to support the application for continued use of the policy—
(a) an updated technical, economic and logistical statement of the standardisation, indicating any changes since the previous application;
(b) an updated statement of the selection of the proposed standardised supplies, including the advantages of such supplies over alternative supplies, indicating any changes since the previous application;
(c) the original projections for procurement, the actual volume and value of procurement during the period of the policy and projections for future procurement of the object of standardisation;
(d) plans to ensure transparency and value for money in the procurement of the standardised supplies; and
(e) any other information relevant to the proposed continuation of the policy.
(7) The Board may approve or reject the application for the continued use of the policy of standardisation, and where the Board rejects such application it shall state, in writing, the grounds for such rejection.
63. Statement of requirements for procurement of supplies
The statement of requirements for the procurement of supplies shall be defined by the specification of the requirements, and such specification shall contain a complete, precise and unambiguous description of the supplies required and shall include, where appropriate—
(a) a generic, physical functional or performance description of the qualities, including any environmental or safety features, required of the subject of the procurement;
(b) dimensions, symbols, terminology, language, packaging, marking and labelling of the supplies required; and
(c) the national or international standard, where available, or the standards adopted and approved by the Board after consultation with the Botswana Bureau of Standards.
Subject to these Regulations and the guidelines, bidding documents for each individual procurement requirement for supplies shall specify the terms and conditions applicable and any other information that may be required, and shall be accompanied by the—
(a) specification and list of supplies required;
(b) level and form of bid security required, if any;
(c) level and form of performance security that will be required, if any;
(d) validity of bids required;
(e) bid submission method;
(f) currency or currencies in which bids are to be submitted;
(g) procedure for conversion of prices to a single currency for evaluation purposes, including the source and date of exchange rates to be used;
(h) currency in which the contract price will be paid;
(i) payment terms, including any advance payment, stage payments or payment retention;
(j) basis of prices required, either fixed or variable, and if variable, the method for calculating variations;
(k) method of payment;
(l) documentation required for payment;
(m) delivery terms required in accordance with INCOTERMS;
(n) delivery period required;
(o) inspection or tests required, if any;
(p) insurance policy or statement requirements, if any;
(q) warranty required, if any; and
(r) evaluation methodology and criteria.
65. Pre-qualification for supplies
(1) A pre-qualification for supplies shall be—
(a) set out in accordance with this regulation;
(b) open to all providers who shall be invited to participate by means of a pre-qualification notice advertised in a newspaper of wide circulation in Botswana; and
(c) held on a given date following the advertisement referred to in paragraph (b).
(2) A procuring entity shall use appropriate documents, issued by the Board, for purposes of a pre-qualification for supplies in all the proceedings.
(3) The documents for the pre-qualification for supplies shall contain details of the scope of the procurement and a clear statement of the requirements and criteria for pre-qualification.
(4) The pre-qualification period shall be no less than 14 days.
(5) A procuring entity shall require a provider to submit a written and sealed pre-qualification offer of interest to bid.
(6) The bidder selected as a provider for a pre-qualification bid shall be the bidder having the highest standard of capability and resources determined on the basis of—
(a) experience and past performance on similar contracts;
(b) capabilities with respect to personnel, equipment and manufacturing facilities;
(c) the financial position; and
(d) any other relevant criteria specified in the pre-qualification document.
(7) A procuring entity shall assess a pre-qualification submission in accordance with the requirements and criteria set out in the pre-qualification invitation document and determine the selection of providers in accordance with such criteria.
(8) A procuring entity shall direct the invitation for a pre-qualification bid to all providers who submitted a pre-qualification submission and who meet the requirements of the pre-qualification criteria.
66. Least cost selection – supplies evaluation
(1) A procuring entity shall use the least cost selection-supplies evaluation method for the evaluation of supplies.
(2) Where a procuring entity determines that an evaluation method provided in these Regulations would be more appropriate for a particular supplies contract it intends to conclude than the evaluation method it is required to use, the procuring entity shall request the authorisation of the Board to use such other evaluation method.
Except as otherwise prescribed in the form of contract included in the tender documents, delivery terms shall be determined in accordance with INCOTERMS and as may be specified in the guidelines.
(1) A procuring entity shall, where applicable, ensure that the following inspection tests are carried out—
(a) inspection of supplies;
(b) sample inspection of items at a factory;
(c) witnessing of factory tests of equipment;
(d) operational inspection of on site tests; or
(e) inspection of quality control management systems.
(2) Where need is established for the inspection requirements referred to under subregulation (1) the procuring entity may, for the purpose, engage a provider under the methods and procedures providing for the procurement of services and on such conditions as shall be determined by the value and complexity of the inspection.
PART VII
Procurement of Works (regs 69-72)
69. Statement of requirements for procurement of works
(1) The statement of requirements for the procurement of works shall be interpreted in accordance with—
(a) the scope of works;
(b) the bill of quantities; or
(c) both the scope of works and the bill of quantities.
(2) The scope of works shall contain a clear, unambiguous and precise description of the works required and may include—
(a) a background narrative to the works required;
(b) the objectives for the works required;
(c) a list of specific tasks to be performed;
(d) the supervision requirements and the line of authority to be followed;
(e) specific administrative arrangements;
(f) the duration of the works that are to apply;
(g) the standards required to be derived from—
(i) national or international standards, where available,
(ii) the standards adopted and approved by the Board after consultation with the Botswana Bureau of Standards, or
(iii) the relevant industry standards, as appropriate to the works; and
(h) such other information as may be necessary to ensure a bidder has sufficient information to submit a responsive bid.
70. Drafting of bidding documents for works
Subject to these Regulations and the guidelines, bidding documents for each individual procurement requirement for works shall specify the terms or conditions applicable and any other information that may be required, and shall be accompanied by the—
(a) specifications, drawings and bill of quantities;
(b) level and form of bid security required, if any;
(c) level and form of performance security required, if any;
(d) validity of bids required;
(e) bid submission method;
(f) drawings or other documentation required;
(g) currency or currencies in which bids are to be submitted;
(h) procedure for conversion of prices to a single currency for evaluation purposes, including the source and date of exchange rates to be used;
(i) currency in which the contract price will be paid;
(j) type of contract, including, but not limited to lump sum, time-based or unit prices;
(k) payment terms, including any advance payments, stage payments or payment retention;
(l) basis of prices required, either fixed or variable, and, if variable, the method for calculating variations;
(m) method of payment;
(n) documentation required for payment;
(o) schedule of completion;
(p) functions and authority of the engineer, architect or contract manager, if any;
(q) inspection or tests required, if any;
(r) insurance cover required; and
(s) evaluation method and criteria.
71. Pre-qualification for works
(1) A pre-qualification for works shall be—
(a) set out in accordance with this regulation;
(b) open to all providers, who shall be invited to participate by means of a pre-qualification notice advertised in a newspaper of wide circulation in Botswana; and
(c) held on a given date following the advertisement referred to in paragraph (b).
(2) A procuring entity shall commence a pre-qualification process for all works tenders by using the Model Pre-qualification Guidelines and Model Documentation issued by the Board.
(3) The documents for the pre-qualification for works shall contain details of the scope of the procurement and a clear statement of the requirements and criteria for pre-qualification.
(4) The pre-qualification period shall be no less than 14 days.
(5) A procuring entity shall require each provider to submit a written and sealed pre-qualification offer of interest to bid.
(6) The procuring entity shall only pre-qualify bidders who have the highest standard of capability and resources determined on the basis of—
(a) experience and past performance on similar contracts;
(b) capabilities with respect to personnel, equipment and manufacturing facilities;
(c) financial position; and
(d) any other relevant criteria specified in the pre-qualification notice.
(7) A procuring entity shall assess a pre-qualification submission in accordance with the requirements and criteria set out in the pre-qualification invitation document and determine the selection of providers in accordance with such criteria.
(8) A procuring entity shall direct the invitation for a pre-qualification bid to—
(a) all pre-qualification bidders who submit responses and who meet the requirements of the pre-qualification; or
(b) the providers referred to in paragraph (a) together with such number of bidders appropriate to ensure effective competition for the bid.
(9) A pre-qualification list shall be valid for a period not exceeding 12 months.
72. Evaluation methods for works
(1) A procuring entity shall use, as the basis of evaluation of works tenders, either the—
(a) quality and cost method; or
(b) least cost method.
(2) Quality and cost based selection may be used where—
(a) the works are difficult to define in the bill of quantities; or
(b) specific operational considerations have a significant importance in the success of the works, such as the—
(i) technical quality of management and workforce,
(ii) speed of mobilisation,
(iii) plant availability,
(iv) current workload; or
(v) other similar factors.
(3) Where a procuring entity determines that an evaluation method, other than a method provided in these Regulations, would be more appropriate for a particular works contract it intends to conclude, it shall request the authorisation of the Board to use such alternative evaluation method.
PART VIII
Procurement of Services (regs 73-76)
73. Statement of requirements for procurement of services
(1) The statement of requirements for the procurement of services shall be interpreted in accordance with the terms of reference.
(2) The terms of reference shall contain a clear, unambiguous and precise description of the services required and shall include, where appropriate—
(a) a background narrative for the services required;
(b) the objectives of the services required together with a list of targets to be achieved by the service provider;
(c) a list of specific tasks or duties to be performed;
(d) a list of material to be delivered at the end of the assignment or outputs against which the achievements of the services can be measured;
(e) the management reporting lines of the service provider to the procuring entity;
(f) assignment duration, specific administrative arrangements and reporting requirements that are to apply; and
(g) the relevant industry standards for approaching and implementing an assignment.
74. Drafting of bidding documents for services
Subject to these Regulations and the procurement guidelines, bidding documents for each individual procurement requirement for services shall specify the terms or conditions applicable and any other information that may be required and shall be accompanied by the—
(a) terms of reference and expected input of key personnel, where applicable;
(b) level and form of bid security required, if any;
(c) level and form of performance security that will be required, if any;
(d) validity of bids required;
(e) bid submission methodology;
(f) currency or currencies in which bids are to be submitted;
(g) procedure for conversion of prices to a single currency for evaluation purposes, including the source and date of exchange rates to be used;
(h) currency in which the contract price will be paid;
(i) basis of prices required, either fixed or variable, and if variable, the method for calculating variations;
(j) method of payment;
(k) type of contract and payment terms, including, but not limited to lump sum, time-based or percentage contract and an indication of whether advance payments are permitted;
(l) duration and timing of inputs;
(m) deliverables or outputs required; and
(n) evaluation method and criteria.
75. Pre-qualification for services
(1) A pre-qualification for services shall be—
(a) open to all providers, who shall be invited to participate by means of a pre-qualification Notice, advertised in the Gazette and in a newspaper of wide national and international circulation; and
(b) held on a given date following the advertisement referred to in paragraph (a).
(2) A procuring entity shall use appropriate documents, issued by the Board, for purposes of a pre-qualification Notice.
(3) The Notice for the pre-qualification for services shall contain details of—
(a) the scope of the procurement and a clear statement of the requirements and criteria for pre-qualification; and
(b) a statement of the capabilities and resources required from the provider in terms of the service contract.
(4) The pre-qualification period shall be no less than 14 days.
(5) A procuring entity shall require each provider to submit a written and sealed pre-qualification offer of interest to bid.
(6) The procuring entity shall only pre-qualify bidders who have the highest standard of capability and resources determined on the basis of—
(a) experience and past performance of similar contracts;
(b) capabilities with respect to personnel, equipment and manufacturing facilities;
(c) financial position (excluding price quotations); and
(d) any other relevant criteria specified in the pre-qualification Notice.
(7) A pre-qualification list shall be valid for a period not exceeding 12 months.
76. Evaluation methods for services
(1) A procuring entity shall use an evaluation method provided in these Regulations for the procurement of services.
(2) The quality and cost based selection evaluation method may be used for professional services where the terms of reference are well defined and prospective bidders have been selected on the basis of a pre-qualification procedure.
(3) The quality based evaluation method may be used for professional services for—
(a) highly specialised assignments for which—
(i) it is difficult to define precise terms of reference and the required input from the consultant,
(ii) the procuring entity expects each consultant to demonstrate innovation in their bid, and
(iii) prospective bidders have been selected on the basis of pre-qualification procedure;
(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, such that bids will not be comparable and in which the value of the services depends on their quality.
(4) The fixed budget selection evaluation method may be used for professional services when the assignment is simple and can be precisely defined, and when the budget is fixed
(5) The least cost selection-services evaluation method may be used for assignments of a standard or routine nature where well established practices and standards exist.
(6) A procuring entity shall first obtain the approval of the Board before using any other evaluation methodology.
PART IX
Administrative Review (regs 77-79)
77. Claim for compensation for contravention of legal provisions
(1) A person who is aggrieved by any decision of the Board or of any of its committees, pursuant to matters arising under section 103 of the Act, may—
(a) submit a complaint by following the review procedures of the Board, set out in regulation 78; and
(b) if that person is dissatisfied with the final decision reached when the review procedures of the Board under paragraph (a) are exhausted, apply to the Independent Committee for a review of the decision.
(2) The following matters shall not be subject to the review referred to in subregulation (1)—
(a) the selection of a method of procurement;
(b) the choice of an evaluation procedure for such procurement;
(c) a decision by the Board or its committee to reject all bids; and
(d) a refusal by the procuring entity to respond to an unsolicited offer of an interest to bid.
78. Procedure for claiming compensation
(1) A person who submits a complaint, under regulation 77(1) shall do so in writing, to the Secretary of the Board.
(2) The complaint referred to in subregulation (1) shall contain particulars of the precise grounds of the complaint and be accompanied by documentary evidence of loss, in support of any monetary claim.
(3) The Board shall cause the procurement proceeding in process to be suspended immediately upon receipt of a complaint in terms of subregulation (1) where—
(a) the Board has not made an award of a bid; or
(b) a letter has not been issued indicating the commencement of the contract.
(4) The Board shall not consider any complaint brought under regulation 77, unless such complaint is submitted within 14 days of the publication of the decision of the Board or its committees, or within 14 days of the date the bidder became aware of the circumstances giving rise to the complaint.
(5) The Board shall inform all the bidders participating in the procurement proceedings, to which the complaint relates, of the circumstances leading to the complaint, as soon as possible after the receipt of the complaint.
(6) Where the Board fails to arrive at a mutually agreed settlement of the complaint with the bidder within 14 days of the submission of the complaint, a dispute shall be declared, and the Secretary of the Board shall refer the dispute to the Independent Committee stating the—
(a) reasons for the referral of the dispute; and
(b) grounds upon which the Board denies liability, where liability is denied.
(7) Where the Secretary to the Board fails to refer the dispute to the Independent Committee, in terms of subregulation (6), the bidder who is party to the dispute may, within seven days from the date the Secretary was required to have referred the dispute, refer the dispute to the Independent Committee.
(8) Any bidder whose interests are, or could be affected, by the review proceedings, that may be held in relation to the complaint, shall have a right to participate in the review proceedings.
(9) Any decision on the complaint arrived at by the Board shall, within five days, be furnished to any of the parties that participated in the review proceedings.
79. Procuring entity to be notified of complaint
(1) Upon receipt of a complaint under regulation 77, the Board shall, immediately, forward a written notice of the complaint to the procuring entity and such notice shall require the procuring entity to suspend any further action in the procurement proceedings to which the complaint relates until the Board, or where appropriate, the Independent Committee has settled the matter.
(2) A written complaint submitted under regulation 77, to the Board, shall not be based on frivolous evidence or circumstances and shall contain a declaration of contents, of which, if proven, demonstrate that where the procurement proceedings are not suspended—
(a) the bidder will suffer irreparable harm;
(b) it is probable that the complainant shall succeed; and
(c) disproportionate harm shall be caused to the procuring entity or to the other bidders.
(3) The total period of suspension under subregulation (2) shall not exceed 60 days.
(4) Any decision taken by the procuring entity and the Board and the grounds and circumstances of such decision shall be made part of the record of procurement proceedings to be kept by the procuring entity and the Board.
PART X
General (regs 80-97)
(1) Except as otherwise provided in the conditions of contract included in the tender documents, a procuring and disposing entity shall place contracts based on fixed and firm prices for a procurement that is to be completed within 12 months from the placement of the contract.
(2) A procuring and disposing entity may place contracts with a price adjustment provision for procurement requirements that will not be completed within 12 months from the placement of a contract.
(3) The Board shall provide procuring and disposing entities with advise in connection with internationally accepted practices in relation to pricing standards for differing procurement requirements.
(1) Except as is provided for in the conditions of any contract, any provision relating to price adjustment may be included in any contract exceeding 12 months, where it is more economical for a procuring and disposing entity to accept the inflation risk than to pay the additional cost for the supplier to accept the risk.
(2) Where a price adjustment provision is included in a contract referred to in subregulation (1), the method for calculating the adjustment, and any restrictions or conditions on that adjustment, shall be clearly stated in the bidding documents.
(3) Any price adjustment shall be calculated by use of pre-defined formula, which separates the total price into components, such as labour, equipment, material and fuel, which are adjusted by price indices specified for each component:
Provided that if the payment currency is different from the source of the input and corresponding index, a correction factor shall be applied in the formula, to avoid incorrect adjustment.
(4) The formula referred to in subregulation (3), the price indices, any correction factors and the base date for application shall be clearly stated in the bidding documents and any resulting contract.
(5) The formula referred to in subregulation (3) and the price indices shall be appropriate to the type of procurement and the source of the inputs and shall use industry standards wherever possible.
(6) Where no industry standards are, or other appropriate formula is, available, a procuring and disposing entity shall use the sample formula specified in the Fifth Schedule.
(7) Any request for price adjustment shall be submitted to the Board or its committees not more than 90 calendar days from the time the circumstances upon which the price adjustment is based arise.
A bidding document and any resulting contract shall detail the payment terms that shall apply, and the payment terms shall specify the—
(a) payment method;
(b) payment structure;
(c) payment documents;
(d) payment period; and
(e) payment currency.
(1) A procuring and disposing entity shall agree with the provider on the method of payment that shall apply to any resulting contract.
(2) Where a bidder proposes a method of payment, the bidder shall be instructed to include the full costs thereof in the bid price.
(3) The method of payment shall be comprehensively defined in the resulting contract including the payment of the costs associated with the method preferred by the provider.
(4) The method of payment under any contract entered into in terms of these Regulations shall be acceptable to the Bank of Botswana.
(1) A procuring and disposing entity shall consider and state in the bidding documents and the resulting contract the payment structure for each procurement.
(2) The structure and amount of payments shall be determined for each procurement requirement by best practices, and such payment structures may include—
(a) advance payments;
(b) stage (or phased) payments, which shall be linked to specific deliverable or milestones and may be stated in percentage terms of the defined amount or specific amounts;
(c) regular interim payments, which shall be linked to specific contract events, such as installations or warranties; and
(d) retained payments, which shall be linked to specific contract events, such as installation or warranties.
(1) Except, as otherwise specified by government policy, and where best practices dictate, no contract shall be entered into by a procuring and disposing entity which require an advance payment.
(2) Except, as otherwise provided by government policy, 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 document in accordance with regulation 30(2)(e).
(3) An advance payment shall be recovered from subsequent payments due to the provider, which shall be subject to reduction in equal instalments over a period not exceeding fifty percent of the contract period.
(4) An advance payment may be made for such activities as—
(a) mobilisation costs in respect of the provision of works;
(b) start up costs in respect of the provision of services; and
(c) certain circumstances in respect of the provision of supplies, such as items that have to be specially or custom manufactured.
(1) Where the practices dictate, a contract may be entered into by a procuring and disposing entity in which interim or stage payments are permitted.
(2) Where interim or stage payments are permitted, they shall comply with the following conditions—
(a) payments shall be linked to specific and verifiable deliverables, contract events, time periods or work, which must be stated in the bidding documents and resulting 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 remained with the provider; and
(d) where a payment security is determined to be appropriate, the provisions of regulation 30(2)(e) shall apply.
(1) Where a procuring and disposing entity has determined that retained payments are appropriate, the contract shall detail—
(a) the percentage or amount of the total contract value to be retained;
(b) the period or the event at which the retention shall be released; and
(c) the documentation that shall evidence or certify the period or event in paragraph (b).
(2) A payment security may be permitted to be substituted for a retention payment in accordance with regulation 30(2)(e).
(1) No payment shall be made to a provider or in respect of deliverables due against works, services or supplies contracts without receipt of the deliverables detailed in the contract.
(2) Where a payment is made prior to receipt of deliverables—
(a) a payment security shall always be required and the requirement for a security shall be stated in the bidding documents;
(b) the security shall be in a form and from an institution that is acceptable to the Bank of Botswana or any other legally recognised financial institution, registered in Botswana;
(c) the security shall be in the format provided by the Board and provided in the bidding documents; and
(d) the security provided by the provider shall be valid for an agreed period beyond the final expected transaction date of the resulting contract or expected release date, as appropriate.
(1) A procuring and disposing entity shall clearly state, in the bidding document, the documents against which each payment is to be made.
(2) The documents referred to in subregulation (1) may include, but not limited to, documentation certifying the—
(a) delivery of the requirement or the receipt of the requirement by the consignee in accordance with delivery terms of the contract;
(b) itemised list of the requirements within packages delivered;
(c) insurance coverage of the delivered items;
(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, 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 of reports, manuals, guides, or other documentation required as a deliverable against a contract;
(i) completion of works or services required against a contract; and
(j) receipt of payment due to sub-contractors.
(3) Payment documentation from a provider shall always require an original invoice from the provider certifying the payment due.
(1) A procuring and disposing entity shall be responsible for organising payment to be made to the provider within 30 days of the certification of payment request.
(2) Except as otherwise provided in the tender document, the payment period shall be 30 days of the date of certification of invoice.
(3) Except as may be otherwise authorised by the Board, no payment to a contractor shall be ceded.
91. Payment and payment delays
(1) A procuring and disposing entity 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 provider to a procuring and disposing entity in accordance with the terms of the contract placed by the procuring and disposing entity.
(3) Upon receipt from a provider, of a payment request, the procuring and disposing entity shall, within five days of the date of receipt of the request, examine the payment request and ascertain if it is correct, accurate and in accordance with the terms of the contract.
(4) If the payment request is correct, accurate and in accordance with the terms of the contract, the procuring and disposing entity shall, within five days of the date of receipt of the payment request, certify it for payment and instruct the competent official to make full payment in accordance with the terms of the contract.
(5) If 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 as correct, and no payment shall be made.
(6) A payment request which is not certified as correct shall, within five days of the date of receipt of the request, be returned to the provider, detailing fully the reasons the presentation cannot be certified for payment.
(7) 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.
(8) The procuring and disposing entity 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 has been varied in the special conditions of the contract.
(9) A delay in payment to a provider shall attract interest at the prevailing commercial bank overdraft rate or such rate as may be stated in the bidding document, on a daily basis, for each day after the due date for payment.
(10) Notwithstanding the provisions of subregulation (3), the querying by a procuring and disposing entity of any part of a payment invoice from a provider shall not delay payment of the unchallenged portion of the invoice to the provider.
92. Currency for payment and limitations thereon
(1) A bidding document shall state any limitation on the currency of bidding or the currency of payment that may apply to a procurement proceeding or resulting contract.
(2) Unless otherwise stated in the solicitation or contract documents, the currency for bidding and payment shall be—
(a) Botswana Pula, for works, services and supplies originating in Botswana; and
(b) the currency of the expense or the currency of the providers country, for works, services or supplies originating outside Botswana or for imported parts or components of works, services or supplies originating outside Botswana, if such currency is a major trading currency.
93. Export and import licences
Unless otherwise provided by the delivery terms stated in a bidding document—
(a) a contract for procurement requirements that require export licences shall be the responsibility of the provider, but the procuring and disposing entity shall render any assistance necessary for the provider to process any application for export licences;
(b) a contract for procurement requirements that require import licences shall be the responsibility of the importer, but the procuring and disposing entity shall render any certification necessary to the importer to process any applications for import licences.
(1) A procuring and disposing entity shall ensure that insurance or indemnity cover is arranged to cover each procurement requirement, and the appropriate provisions shall be included in the bidding document and the draft contract.
(2) Where applicable, insurance or indemnity cover shall be arranged with Botswana insurance companies.
(1) Where a contract needs to be amended in order to change the original terms and conditions, a contract amendment shall be issued to the provider.
(2) A contract amendment shall be prepared, approved and issued in the same manner as the original contract and shall require the prior approval of the Board or any of its competent committees.
(3) A contract amendment shall be prepared by the procurement and disposal entity.
(4) No contract amendment shall be issued prior to—
(a) approval being obtained from the Board or any of its competent committees;
(b) funding being committed in the full amount of the amended contract price over the required period of the revised contract; and
(c) approval being obtained from all necessary bodies after the Board or any of its competent committees approval.
(5) A contract amendment for additional quantities of the same items shall use the same unit prices as the original contract.
(6) An individual contract amendment may be increased by up to 15 per cent of the original contract price without seeking the prior approval of the Board.
(7) . . .
96. Variation or change order to contract
(1) A contract variation or change order may be issued by the competent official, without the Boards or any of its competent committees approval only where the variation or change order is within the contingency element of a bid, or such limit as the Board may allow.
(2) Notwithstanding the provisions of subregulation (1), any additional funding required for a variation or change order shall be committed.
(3) A contract may be varied in accordance with a compensation event or the issue of a variation or change order or similar document, as provided for in the contract.
(4) A 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 competent official, as defined in the contract.
(5) A contract which provides for a variation or change order shall include a limit on such variation or change order, which limit shall not be exceeded without the issue of a contract amendment.
97. Contract amendments, variations or change orders
In this Part—
(a) “contract amendment” means a change to the terms and conditions of an awarded contract; and
(b) “contract variation” or “change order” means a change to the price, completion date or statement of requirements of a contract to facilitate adaptations to anticipated events or changes in requirements.
PART XI
Disposal of assets (regs 97-122)
98. Application of rules on disposal of public assets
(1) All activities relating to disposal of public assets shall be carried out in accordance with the rules set out in the Act, these Regulations and the guidelines.
(2) The provisions of these Regulations, in respect of procurement, shall apply to activities relating to the disposal of public assets, where appropriate.
(3) These Regulations shall not apply to public assets which are subject to the provisions of the Public Enterprises Evaluation and Privatisation Agency.
99. Records of disposal of public assets
(1) A procuring and disposing entity shall maintain records on its disposal proceedings of contracts management for a period of seven years from the date of a decision to terminate the disposal action, or the date of contract completion, whichever is the later, except where a contract is ongoing or is challenged, in which case the records shall be kept for an additional year after the completion of the contract or the settlement of the dispute, whichever is the earlier.
(2) The following records of a procuring and disposing entity shall be open to inspection by the competent authority during working hours—
(a) all records relating to the disposal process;
(b) all records relating to contracts management;
(c) all records of the Board or any of its committees; and
(d) any records of the Accounting Officer which relate to disposal, contracts management, disagreements with the Board or its competent committee, investigations of complaints or any other matter related to the Act or these Regulations.
(3) Every disposal of public assets shall contain the following documents, where appropriate—
(a) the request to initiate disposal proceedings;
(b) a copy of the published invitation notice, if any;
(c) a copy of the bidding documents and any amendments or clarifications thereto, and any additional information such as an auctioneer’s catalogue or general descriptive literature;
(d) the details of any visits to inspect the assets by potential bidders;
(e) the records of bid openings;
(f) copies of all bids evaluated and any clarifications issued and responses received;
(g) the evaluation report, if any;
(h) minutes of any meetings related to the disposal, including negotiations;
(i) the notice of award to the successful bidder, if any;
(j) the contract document, if any;
(k) all documents related to contract management, including, but not limited, to receipt of payment records and handing over certificates;
(l) a copy of the update to the procuring and disposing entity’s assets register;
(m) all correspondence between the procuring and disposing entity and bidders, auctioneers or third party disposal agents; and
(n) all submissions to the Board or its competent committee and all decisions related to the disposal method, approval of bidding documents, approval of evaluation reports, approval of negotiations and contract award, approval of contact documents and any decision to suspend or cancel disposal proceedings.
(1) Assets to be disposed of shall be grouped in contracts or lots in a manner which will attract the maximum possible competition.
(2) Where assets are to be disposed of through public auction, a procuring and disposing entity shall maximise the number of assets to be disposed of at one time in order to reduce the administration and transaction costs.
(3) A procuring and disposing entity may pool assets for purposes of common disposal.
101. Initiation of disposal requirements and approval for disposal
(1) The user department shall initiate the disposal process.
(2) Disposal requirements shall be documented using such format as the Board may prescribe.
(3) Disposal of assets shall be approved by the Board or its competent committee.
(4) Approval to commence disposal proceedings shall be evidenced by the signature of the Accounting Officer on the standard form documenting disposal requirements or by an official authorised by the Accounting Officer to so certify.
(5) 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 state the appropriate reference number from the asset register.
102. Selection of disposal method
A procuring and disposing entity shall select one of the disposal methods specified in this Part XII.
(1) A procuring and disposing entity shall obtain a valuation of the assets to be disposed of, prior to the commencement of any disposal proceedings.
(2) Notwithstanding the provisions of subregulation (1), no valuation of assets is required where the cost of the valuation is likely to be in excess of the money expected to be realised through the disposal process.
(3) Where required by existing legislation, the valuation of assets to be disposed of shall be done by the competent authority.
(4) A procuring and disposing entity shall use the valuation of assets to determine a reserve price, where appropriate, which shall be the minimum sale price of the asset.
(1) A bidding document or notice and any information made available to prospective bidders shall normally 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 as a bidding document.
(3) Notwithstanding the provisions of subregulation (1), a procuring and disposing entity shall include as full a description as possible of the assets to be disposed of and shall ensure that the information is accurate and not misleading.
(4) The description of the assets to be disposed of must address, where appropriate, the risk and cost associated with the dismantling and removal of assets upon conclusion of the disposal proceedings.
(5) No warranty shall be offered on the assets to be disposed of.
(6) Notwithstanding the provisions of subregulation (5), a procuring and disposing entity may, in exceptional circumstances, offer a warranty on the assets to be disposed of where the increase in the price received for the assets is likely to be greater than any costs associated with providing the warranty.
(1) A bidding document shall be drafted using the standard form issued by the Board.
(2) A bidding document shall include—
(a) a description of the 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;
(c) the location of the assets and arrangements for potential bidders to inspect the assets;
(d) the deadline, location and method for submission of bids;
(e) the arrangement for the bid opening;
(f) the qualification requirements to be met by bidders, if any;
(g) the method for evaluating bids and awarding a contract;
(h) the conditions of sale, if any;
(i) the requirements for payment of the sale price and handing over arrangements;
(j) a statement confirming that the risk and cost of dismantling and removal of the assets shall be the responsibility of the successful bidder; and
(k) details of any reservation scheme in operation.
(3) A procuring and disposing entity may sell solicitation documents.
(4) A procuring and disposing entity shall record the issue or sale of bidding documents using the standard form issued by the Board.
(5) A procuring and disposing entity shall publish public invitation notices in at least one newspaper of wide circulation in Botswana.
106. Advertisement and bidding periods
(1) Where the solicitation of bids is by invitation notice only, the period between the advertisement of the invitation notice and the date for bidding shall be a minimum of 10 days to allow sufficient time for potential bidders to inspect the assets.
(2) Where the solicitation of bids is by invitation notice and bidding document, the advertising period shall be a minimum of 14 days.
(3) Where written bids are required, the bidding period shall be specified in the section of the bidding document, taking into account the following factors—
(a) the need to allow sufficient time for potential bidders to inspect the assets prior to bidding;
(b) the level of detail required in the bids; and
(c) the time required for preparation and delivery of bids to the procuring and disposing entity.
(1) A procuring and disposing entity shall ensure that potential bidders are offered a reasonable opportunity to inspect the assets to be disposed of before the date or deadline for bidding.
(2) An arrangement for the inspection of the assets to be disposed of shall be included in the invitation notice and in the bidding documents, where appropriate.
(1) A bid may be either—
(a) oral, in case of auctions; and
(b) written, in all other cases.
(2) Where a bid is written, the procuring and disposing entity shall require the bidder to submit a sealed, written bid.
(3) A bidding document shall contain instructions to bidders on—
(a) the format and documentation required in a bid;
(b) the procedure for signing and authorising bids; and
(c) the number of copies of bids to be submitted, which shall be one original bid, marked ORIGINAL, and a specified number of copies, marked COPY.
(1) Where a bid is oral, the procedure for bidding shall be specified by the auctioneer in accordance with normal auction practices.
(2) Where a bid is written, it shall be submitted in a plain outer envelope, securely sealed in such a manner that opening and resealing cannot be achieved undetected.
(3) A bidder may choose their preferred method of envelope sealing, but the procuring and disposing entity shall reject any envelope, at the opening, that is unsealed.
(4) A bidding document shall contain instructions on the details of labeling and references to be detailed on each envelope, which shall include at least—
(a) the disposal reference number;
(b) the name of the bidder;
(c) the words “WITHDRAWAL” or “REPLACEMENT”, where bids are being withdrawn or replaced; and
(d) the words “NOT TO BE OPENED BEFORE THE BID OPENING”.
(1) A bidder may withdraw a written bid at any time before the deadline for submission of bids.
(2) A withdrawal of a bid shall be by submission of a letter notifying the procuring and disposing entity of the withdrawal, which letter shall be authorised and submitted in the same way as the bid.
(3) A withdrawal letter in respect of a bid shall be opened, read out and recorded at the bid opening.
(4) A bidder who withdraws their bid may submit a new bid in accordance with the provisions of the bidding document.
(5) A submitted bid may be amended at any time before the deadline for submission of bids.
(6) An amendment of a bid shall be by the withdrawal of the original bid and the submission of a new bid.
(7) An oral bid shall not be withdrawn, except where a notice of withdrawal, as provided for in subregulation (2), is given by the bidder to the procuring and disposing entity within a period of 48 hours of the bidding.
(1) Where written bids are required, the receipt of bids and the bid closing process shall be in accordance with the provisions of regulation 38.
(2) Every bid closing shall be recorded.
(1) Where written bids are required, the bid opening may be either by way of—
(a) public bid opening; or
(b) non public bid opening.
(2) The bid opening process shall be in accordance with the provisions of regulation 38.
(3) Every bid opening shall be recorded.
(4) Except where otherwise provided for in these Regulations, a procuring and disposing entity shall not declare the best evaluated bid or contract award at the bid opening or any re-bidding procedure.
(1) The evaluation of bids shall be based either—
(a) on price only; or
(b) 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-user restrictions;
(b) there are export restrictions; or
(c) there is need to attach conditions to the sale.
114. Re-bidding due to identical bids
(1) Where written bids have been requested and the highest priced bid has been submitted by more than one bidder, the procuring and disposing entity shall arrange a re-bidding procedure, where only the bidders who submitted identically priced bids are invited to submit a revised bid.
(2) No bidder, other than those who submitted the identical highest priced bids, shall be permitted to submit a revised bid or participate in the re-bidding procedure in any way.
(3) The revised bid referred to in subregulation (2) shall contain a revised price only, and the bidders shall not be permitted to change, in any way, the terms and conditions, technical details, documentation or any other aspect of their original bid, other than the price.
(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 regulation 115, and it is reasonable to conduct and conclude the evaluation immediately in the presence of bidders at a public bid opening, the procuring and disposing entity may, if the bidders concerned so agree, conduct the rebidding procedure immediately.
(7) The bid opening procedure for the revised bids shall be the same as for the original bids.
(8) The evaluation of the revised bids 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 that the original bid price shall be rejected under this regulation.
(10) Where identical highest priced bids are received during a re-bidding procedure, a further re-bidding procedure shall be held in accordance with this regulation.
(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.
115. Evaluation based on price only
(1) Where the evaluation, in respect of an asset to be disposed of, 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 team shall—
(a) correct any arithmetic errors;
(b) convert the bids to a common currency; and
(c) compare the bid price with the valuation of the asset or reserve price, where appropriate.
(3) Where it is reasonable to conduct and conclude the evaluation immediately in the presence of bidders at a public bid opening, the procuring and disposing entity may do so for the purpose of establishing whether the highest priced bid has been submitted by more than one bidder and a rebidding procedure is necessary in accordance with regulation 114.
(4) Notwithstanding the provisions of subregulation (3), a procuring and disposing entity shall not declare the best evaluated bid or contract award at the bid opening or any re-bidding procedure.
116. Evaluation based on price and other factors
(1) Where the evaluation is based on price and other factors, the eligibility requirements or evaluation criteria and methodology shall be stated in the bidding document.
(2) The eligibility requirements referred to in subregulation (1) shall be evaluated on a pass or fail basis.
(3) A procuring and disposing entity 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, but the use of such evaluation criteria shall be fully justified and approved by the Board or its competent committee prior to the issue of the bidding documents.
(6) The evaluation under this regulation shall use the following methodology—
(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) application of any other evaluation factors in the manner stated in the bidding document;
(c) price evaluation to—
(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 assets or reserve price, where appropriate.
(7) A recommendation for a contract award shall be in accordance with the methodology in the bidding documents.
(8) 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.
(9) 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), a contract award shall be recommended to the bidder with the best evaluated bid, in accordance with the methodology stated in the bidding document.
117. Evaluation teams and reports
(1) Where bids are oral under the public auction method, no evaluation team or evaluation report shall be required.
(2) Notwithstanding the provisions of subregulation (1), the name of the successful bidder and the contract price shall be reported to the Board or its competent committee.
(3) Where written bids are received, the evaluation shall be conducted by an evaluation team, in accordance with the provisions of these Regulations.
(4) Where bids are written, an evaluation report shall be produced and submitted to the Board or its competent committee for approval, prior to contract award.
(5) Where evaluation is on the basis of price only, the evaluation report shall detail—
(a) the price of each bid opened;
(b) the correction of any arithmetic errors and the conversion to a common currency, if necessary;
(c) a comparison of the price of the bid with the valuation or reserve price, if any, and an assessment of whether the bid price offers the best available return for the procuring and disposing entity;
(d) a statement of the best evaluated bid;
(e) a recommendation as to whether negotiations are needed prior to the award of the contract; and
(f) a recommendation for an award of the contract or any reservations in regard to the valuation or reserve price.
(6) Where evaluation includes factors, other than price, the evaluation report shall detail—
(a) whether a bidder was eligible or not eligible;
(b) the results of the application of any other evaluation criteria relevant to public interest;
(c) the price of each bid opened;
(d) the correction of any arithmetic errors and the conversion to a common currency, if necessary;
(e) a comparison of the price of the bid against the evaluation criteria and whether the bid offers the best available return for the procuring and disposing entity;
(f) a statement of the best evaluated bid;
(g) a recommendation as to whether negotiations are needed prior to the award of the contract; and
(h) a recommendation for an award of the contract or any reservations with regard to the valuation or reserve price.
118. Negotiations under competitive methods
(1) Post-bid negotiations may be undertaken where—
(a) the highest bid falls short of the reserve price, valuation or anticipated sale price of the assets; or
(b) there is a need to negotiate the conditions of sale.
(2) Following approval of the evaluation report, the procedure for negotiation shall be as follows—
(a) the evaluation team shall detail the nature of the proposed negotiations, listing the points that are to be clarified or discussed and the objectives to be obtained in a negotiations plan;
(b) the Board or its competent committee shall approve the negotiation plan prior to any negotiations taking place;
(c) negotiations shall be held with the best evaluated bidder, with at least three members of staff of the procuring and disposing entity present, except that the members of staff of the procuring and disposing entity, at the negotiations, shall not commit the procuring and disposing entity, to any arrangement, but shall seek the approval of the Board or any of its committees prior to confirming any agreement reached;
(d) the negotiations team shall report, in writing, to the Board or any of its committees on the achievements of the negotiations in relation to the objectives of the negotiation document and shall submit minutes of the meeting. The report shall state whether the negotiation objectives have been substantially achieved and shall contain a recommendation to—
(i) proceed with the contract award to the recommended bidder, incorporating the agreements reached during negotiations,
(ii) revise the negotiation objectives and hold further negotiations, or
(iii) terminate the negotiations, reject the bidder and invite the next ranked bidder for negotiations.
(3) The Board or any of its committees may—
(a) approve the recommendations;
(b) request further negotiations on specific points,
(c) reject the recommendations and give reasons therefor; or
(d) cancel the negotiations in their entirely.
(4) The results of any approved negotiations shall be incorporated into the contract document.
(5) If negotiations are commenced with the next ranked bidder, the procuring and disposing entity shall not reopen earlier negotiations and the original bidder shall be informed of the reasons for termination of the negotiations.
119. Negotiations under direct negotiation
(1) Under direct negotiation, negotiations are not permitted until after a written bid has been received and evaluated.
(2) The procedure for negotiation, under direct negotiation, shall be—
(a) the procuring and disposing entity shall issue a written request for a bid;
(b) submission of a written bid shall be required;
(c) the evaluation team shall evaluate the bid received for compliance with the written invitation, compare the bid price with the professional valuation and apply any other evaluation criteria;
(d) the evaluation team shall detail the nature of the proposed negotiations, listing the points that are to be clarified or discussed and the objectives to be obtained in a negotiations plan;
(e) the Board or any of its committees shall approve the negotiations plan prior to any negotiations taking place;
(f) negotiations shall be held with the bidder, with at least three members of staff of the procuring and disposing entity present except that the members of staff of the procuring and disposing entity shall not, at the negotiations, commit the procuring and disposing entity to any arrangements, but shall seek the approval of the Board or any of its committees prior to confirming any agreement reached;
(g) the negotiations team shall report, in writing, to the Board or any of its committees on the achievements of the negotiations in relation to the objectives of the negotiations document and shall submit minutes of the meeting; and
(h) the Board or any of its committees may—
(i) approve the outcome of the negotiations in their entirety,
(ii) request further negotiations on specific points, or
(iii) reject and cancel the negotiations in their entirety.
(3) The results of any approved negotiations shall be incorporated into the contract document.
120. Failure to reach the reserve price
(1) Where the best evaluated bid is less than the reserve price, the accounting officer, in consultation with the Board or any of its committees, may—
(a) obtain a further valuation from an independent source;
(b) negotiate the price with the best evaluated bidder;
(c) arrange for new bids to be submitted;
(d) use an alternative method of disposal, which is likely to obtain a higher price; or
(e) sell the assets at the reduced price;
(2) In deciding on the appropriate action to be taken under subregulation (1), the Board or any of its committees and the Accounting Officer shall take into consideration—
(a) the difference between the best evaluated bid and the valuation or reserve price; and
(b) the likely costs of the action.
An award of contract shall—
(a) in the case of a public auction, be by a declaration of the successful bidder at the time of bidding; or
(b) in the case of all other methods of disposal, be by a decision of the Board or any of its committees.
(1) Where a contract award is by a decision of the Board and its competent committee, a contract placement shall be by the issue of a contract document to the successful bidder.
(2) The contract document shall be as specified in the bidding document.
(3) No communication, in any form, that would bind the procuring and disposing entity to a contact with the provider shall be permitted prior to approval of the award of contract by the Board or any of its committees.
(4) 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;
(c) the date for delivery or collection of the assets;
(d) who is responsible for transporting the asset;
(e) the hand-over 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 assets.
(5) All contract awards shall be advertised by publication of a notice on the procuring and disposing entity’s procurement and disposal notice board using the specified format.
(6) Where a bidder fails to make payment, in accordance with the terms of the disposal contract, the contract may be terminated, and a contract may be entered into with the next best bidder, if such bidder is known.
PART XII
Methods for disposal of public assets (regs 123-138)
123. Selection of disposal method
(1) A procuring and disposing entity may select one of the following disposal methods—
(a) public auction;
(b) sealed bidding;
(c) direct negotiations;
(d) trade-in;
(e) transfer to another procuring and disposing entity;
(f) conversion or classification of assets into another form; or
(g) destruction of assets.
(2) A procuring and disposing entity shall, when selecting a disposal method for an asset, take into account the following factors—
(a) the potential market value of the asset;
(b) the volume of the asset;
(c) the number and location of potential bidders;
(d) the location of the asset;
(e) any restrictions on export or end-users;
(f) national security or public interest issues;
(g) legal or human rights issues;
(h) environmental considerations;
(i) the trade-in value of the asset; and
(j) the possibility of transferring the asset to another procuring and disposing entity.
124. Conditions for use of public auction
(1) Disposal by public auction shall be used where there is a high volume of low value assets for which there is a large number of potential bidders and there are no conditions, end-user or export restrictions attached to the sale.
(2) Disposal by public auction may also be used where—
(a) there is a large number of potential bidders for unusual or high value assets; or
(b) there is a variety of assets to be disposed of in one location and an onsite auction could be arranged to avoid transport costs.
125. Conditions for use of public bidding
Disposal by public bidding may be used—
(a) for high-value or unique assets;
(b) for assets located in remote areas;
(c) for assets that have a geographically dispersed potential market;
(d) for assets with end-user or export restrictions attached to their sale; or
(e) where conditions need to be attached to the sale, or post bid negotiations may be required.
126. Conditions for use of direct negotiations
(1) Disposal by direct negotiations 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 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 the market rate;
(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 asset at the market rate.
(2) A detailed justification for the use of direct negotiation shall be approved by the Board of the competent committee prior to the commencement of disposal proceedings.
127. Conditions for use of trade-ins
(1) Disposal by 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 and disposal process.
128. Conditions for use of disposal by transfer to another procuring and disposing entity
(1) Disposal by transfer to another procuring and disposing entity may be used where another procuring and disposing entity is able to make further use of the asset.
(2) The cost of disposal by transfer from one procuring and disposing entity to another shall be agreed between the two procuring and disposing entities concerned.
(3) The transfer referred to in subregulation (1) may be at no cost if it is uneconomical to charge for the asset.
129. Conditions for use of disposal by conversion or classification of assets into another form
Disposal by conversion or classification of assets 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.
130. Conditions for use of disposal by destruction of assets
Disposal by destruction of assets is the least favoured method of disposal, but may be used—
(a) on the grounds of national security or public interest, legal or human rights issues or environmental considerations; or
(b) where the asset has no residual value and it cannot be transferred to another procuring and disposing entity or converted or classified into another form with any value.
(1) The disposal process under public auction shall follow the disposal process set out in subregulations (2) to (15).
(2) Any submission to the Board or any of its committees in respect of disposal by public auction shall be made in such format as the Board may prescribe.
(3) When undertaking disposal by public auction, the procuring and disposing entity shall appoint a professional auctioneer to conduct the process on its behalf.
(4) Any valuation of assets to be disposed of by public auction may be done by the auctioneer, who will be responsible for disposing of the assets.
(5) Bids relating to assets for disposal by public auction shall be solicited through a notification of public auction using such format as the Board may prescribe.
(6) No formal bidding documents shall be issued in relation to assets for disposal by public auction, and any additional information, such as an auctioneer’s catalogue shall be for information purposes only and shall not be considered a bidding document.
(7) Bids in relation to assets for disposal by public auction shall be oral and the procedure for bidding shall be specified by the auctioneer in accordance with normal auction practices. There shall be no minimum bidding period.
(8) Bids, at a public auction, shall be evaluated on the basis of price only.
(9) Negotiations shall not be permitted under the disposal by public auction method.
(10) 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.
(11) A written contract document shall not be required under disposal by public auction.
(12) The successful bidder shall be required to pay at least 50 per cent of the contract price, immediately after the award of contract.
(13) The successful bidder shall be required to pay the balance of the contract price within five days of the award of contract.
(14) Where a bidder fails to make payment, in accordance with subregulations (12) and (13), the contract may be terminated.
(15) The disposal process followed for public auction, shall be based on standard documentation approved by the Board.
132. Appointment of an auctioneer
(1) When undertaking disposal by public auction, the procuring and disposing entity shall appoint a professional auctioneer to conduct the process on its behalf, and such auctioneer shall be licensed.
(2) An auctioneer shall be appointed using the appropriate procurement method for services, which method shall take into account such criteria as—
(a) the auctioneer’s commission rates;
(b) the locations of the auctioneers and transport costs for the assets to be disposed of;
(c) the auctioneer’s facilities;
(d) the auctioneer’s ability to achieve optimum returns;
(e) the past performance and integrity of the auctioneer;
(f) the viability of the auctioneer’s business; and
(g) the provision of any performance bond in the format and form required by the procuring and disposing entity
(3) The appointment of an auctioneer shall be confirmed through a written contract, which shall include the following—
(a) the commission rate and any other fees payable to the auctioneer and the payment terms;
(b) the method and timing for payment of proceeds to the procuring and disposing entity;
(c) responsibility for and payment of any transport costs, including costs for any assets returned unsold;
(d) the date on which, or the period within which, the auction will be held; and
(e) the information and any conditions of sale to be included in the auction notice, auctioneer’s catalogue or any similar document.
(4) The procuring and disposing entity shall ensure that a receipt is received for all assets delivered to, or collected by, the auctioneer.
(1) The disposal process under public bidding shall follow the disposal process set out in subregulations (2) to (13).
(2) Any submission to the Board or any of its committees in respect of disposal by public bidding shall be made using such format as the Board may stipulate in the guidelines.
(3) Bids shall be solicited by the publication of a public invitation notice using such format as the Board may prescribe, indicating that interested bidders may obtain the bidding document from the procuring and disposing entity.
(4) Bidding documents may be sold under public bidding:
Provided that the cost of the documents shall be calculated to cover only the cost of copying and issuing the documents and shall not include any element of profit for the procuring and disposing entity.
(5) The minimum bidding period under public bidding shall be 10 days.
(6) The procuring and disposing entity shall require the bidder to submit sealed, written bids.
(7) The bid opening process shall be a public bid opening in accordance with the provisions of these Regulations.
(8) Evaluation based on price only shall be the preferred evaluation methodology under public bidding.
(9) Evaluation based on price and other factors may be used, in public bidding, in accordance with these Regulations.
(10) Post-bid negotiations may be undertaken under public bidding in accordance with the conditions and procedures in these Regulations.
(11) Contract award shall be by a decision of the Board or its competent committee in response to a recommendation from the procuring and disposal entity.
(12) Contract placement shall be by way of issue of a contract document to the successful bidder
(13) The standard documentation used and disposal process followed for public bidding shall be in accordance with such format and process as the Board may prescribe.
(1) The disposal process under direct negotiations shall follow the disposal process set out in subregulations (2) to (13) of this regulation.
(2) Submissions to the Board or any of its committees, in respect of disposal by direct negotiations, shall be made in such format as the Board may prescribe.
(3) A valuation shall always be obtained where an asset is to be disposed of through direct negotiation.
(4) A bid, under direct negotiations, shall be solicited through the issue of a written bidding document which shall be based on the appropriate standard document.
(5) There shall be no minimum bidding period for disposal by direct negotiation.
(6) The procuring and disposing entity shall require the bidder, under direct negotiations, to submit a sealed, written bid.
(7) The bid opening process under direct negotiation shall be a non-public bid opening in accordance with these Regulations.
(8) Evaluation based on price only shall be the preferred evaluation methodology under direct negotiation.
(9) Evaluation based on price and other factors may be used, under direct negotiation, in accordance with these Regulations.
(10) Post-bid negotiations may be undertaken under direct negotiations in accordance with these Regulations.
(11) Contract award shall be by a decision of the Board or its competent committee in response to a recommendation from the procuring and disposal entity.
(12) Contract placement shall be by way of issue of a contract document.
(13) The standard documentation used and the disposal process followed for direct negotiations shall be in accordance with such format as the Board may prescribe.
(1) A procuring and disposing entity shall obtain a valuation of the asset where the asset is to be disposed of through trade-in.
(2) Under disposal by trade-in, the disposal process shall be an integral part of the relevant procurement process and shall follow the procurement rules in Part III.
(3) A procuring and disposing entity shall, during the disposal process, use the appropriate procurement method in accordance with the provisions of Part V:
Provided that the estimated trade-in value shall not be deducted from the estimated value of the procurement in selecting the appropriate procurement method.
(4) A procuring and disposing entity shall obtain an approval from the Board or any of its committees to include the trade-in requirement in the procurement prior to the commencement of the procurement proceedings.
(5) The bidding document and any invitation notice, where an asset is to be disposed of through trade-in, shall clearly state that the procurement involves a trade-in arrangement.
(6) The bidding document, where an asset is to be disposed of through trade-in, shall be drafted using the appropriate procurement document issued by the Board.
(7) The advertisement of the opportunity, issue of solicitation documents, bidding period and the receipt and opening of bids, where an asset is to be disposed of through trade-in, shall be in accordance with these Regulations.
(8) The evaluation of bids where an asset is to be disposed of through trade-in, shall be done in the appropriate methodology for the procurement requirement.
(9) The trade-in value offered for the asset to be disposed of through trade-in shall be included in the financial evaluation only in the manner stated in the bidding document.
(10) The evaluation of the trade-in offers shall be clearly stated in the evaluation report.
(11) Where factors, other than price, need to be taken into account in the disposal process, disposal by trade-in shall not be used.
(12) Negotiations may be permitted in accordance with the relevant rules on procurement.
(13) An award of contract shall be in accordance with the relevant rules on procurement.
(14) The contract document shall be in the form of the procurement document issued by the Board.
(15) Responsibility for contracts management of the procurement contract and the disposal element shall be clearly defined within the procuring and disposing entity, and where separate staff are responsible for each element, they shall work together, as appropriate.
(16) The standard documentation used and disposal process followed in trade-in shall be in accordance with such format as the Board may prescribe.
136. Transfer to another procuring and disposing entity
(1) Submissions to the Board or any of its committees in respect of disposal by transfer to another procuring and disposing entity shall be made in such format as the Board may prescribe.
(2) Where disposal is by transfer to another procuring and disposing entity, the arrangements for the transfer shall be discussed and agreed between the two entities.
(3) The agreement referred to in subregulation (2) shall include—
(a) the cost to be paid by the beneficial entity, which costmay be none if it is uneconomic to charge for the asset;
(b) any subsidiary, linked assets to be included in or excluded from the transfer;
(c) the date for the transfer;
(d) responsibility for transporting the asset;
(e) the hand-over procedure and any documentation to be transferred;
(f) the mechanism and date for payment for any cost; and
(g) who is responsible for any legal obligations linked to the asset.
(4) The arrangements for the transfer to another procuring and disposing entity shall be confirmed in writing using such format as the Board may prescribe and such arrangements shall be approved and signed by the accounting officers of both procuring entities.
(5) The recipient procuring and disposing entity shall issue an authorised receipt of the assets to the originating procuring and disposing entity.
(6) The standard documentation used and disposal process followed for transfer to another procuring and disposing entity shall be in accordance with such format and process as the Board may prescribe.
(1) Submissions to the Board or any of its committees in respect of disposal by destruction of assets shall be made using such format as the Board may prescribe.
(2) Where disposal is by destruction of assets, the procuring and disposing entity shall either—
(a) undertake the destruction itself; or
(b) identify the competent authority or an appropriate provider to undertake the destruction.
(3) A procuring and disposing entity shall obtain approval from the accounting officer prior to the destruction of an asset being undertaken.
(4) The method of destruction of an asset under disposal by destruction of assets shall be appropriate to—
(a) the assets being disposed of; and
(b) the circumstances giving rise to the destruction, including any grounds of national security or public interest.
(5) A signed certificate of destruction shall be obtained from the authorised official within the procuring and disposing entity, competent authority or provider and shall be kept as part of the record of disposal proceedings.
FIRST SCHEDULE
CERTIFICATE OF AVAILABILITY OF FUNDS FOR PROCURING PURPOSES
(regulation 7(4))
SECOND SCHEDULE
PROCUREMENT REQUIREMENTS
(regulation 27(1))
THIRD SCHEDULE
PRE-QUALIFICATION REQUIREMENTS
(regulation 28(4))
PART I
CONTRACTOR’S STATEMENTS OF EXPERIENCE
PART II
CONTRACTOR’S FINANCIAL STATEMENT
(The certificate of a Public Accountant must be attached. Complete report prepared by Accountant may be substituted.)
PART III
CERTIFICATE OF PUBLIC ACCOUNTANT
(Certification prepared, signed and included in report prepared by Accountant may be substituted.)
Note: This review consists principally of inquiries of management and appropriate analytical procedures applied to this financial data. It is substantially less in scope than an examination in accordance with generally accepted auditing standards, the objectives of which is the expression of an opinion regarding financial statements as a whole. Accordingly, we have not expressed such opinion.
Special note to Accountant:
The above certificate should be issued by an independent public accountant or statutory auditors of the firm, who are not in the employ of the company/firm and not Directors, Partners or co-owners of the company /firm.
FOURTH SCHEDULE
PART I
QUALITY AND COST BASED SELECTION EVALUATION STAGES
(regulation 43(3))
STAGE ONE
Evaluation
The evaluation of a bid shall be conducted, following the opening of a technical bid, by—
(a) conducting a preliminary examination to determine whether or not a bid is qualified and to determine its responsiveness to the terms of the bidding document; and
(b) failing and eliminating from further evaluation a bid determined to be non-responsive and non qualified.
STAGE TWO
Technical Evaluation
1. The technical evaluation of a bid shall be conducted by means of—
(a) evaluating each bid against the technical evaluation criteria;
(b) marking, on a scale of 1 to 100 each criterion; and
(c) weighing of the marks attained by each technical bid and recording them as technical scores.
2. (1) The technical evaluation of a bid shall be conducted in accordance with the following procedure—
(a) the procuring entity shall normally divide the criteria into sub-criteria to assist in the assessment of technical bids;
(b) each bid shall be compared to the minimum qualifying technical mark, and a bid which does not reach the minimum shall be eliminated from further evaluation;
(c) the bidding document shall state the technical evaluation criteria, the weights and the qualifying score;
(d) the procuring unit shall prepare a technical evaluation report of the technical bids received and such report shall—
(i) substantiate the results of the evaluation,
(ii) describe the relative strengths and weaknesses of the bids,
(iii) indicate which bids are recommended to proceed to the cost evaluation, and (iii) be approved by the evaluation committee prior to the cost evaluation;
(e) the following weights are indicative, under paragraph 1(c), and may be adjusted to the specific circumstances of the procurement—
|
Specific experience: |
5 to 10 points |
|
Methodology proposed: |
20 to 50 points |
|
Key personnel: |
30 to 60 points |
|
Transfer of knowledge: |
0 to 10 points |
|
Participation by nationals: |
0 to 10 points |
|
Total |
100 points |
(f) all records relating to the evaluation, such as individual mark or score sheets shall be retained until completion of the procurement.
3. A bidder who has secured the qualifying score shall be notified and be advised of the date and time set for the opening of financial bids, in accordance with the following
(a) the opening date of financial bids shall not be sooner than two weeks following the notification date;
(b) financial bids shall be opened publicly; and
(c) the name of the bidder, the technical score and the bid price shall be read out at the public opening.
STAGE THREE
Cost Evaluation
1. (1) A cost evaluation of a bid shall be conducted by reviewing the—
(a) financial bids to correct any arithmetic errors; and
(b) conversion of bids to a single currency as stated in the invitation to bid.
(2) For the purposes of evaluation, cost shall exclude local taxes, but shall include other reimbursable expenses, such as travel, translation, printing of the report or secretarial expenses.
2. (1) A bid shall be rated by giving a financial score of—
(a) 100 to the bid with the lowest cost; and
(b) an inversely score, proportional to the lowest bid cost, to other bids.
(2) Alternatively a directly proportional cost or other methodology may be used in allocating a mark for the cost, provided that such methodology is fully described in the Invitation to Bid.
3. (1) The total score shall be obtained by—
(a) weighting the technical and cost scores; and
(b) adding the technical and cost scores together to obtain the combined score.
(2) The weight for the cost shall normally be between 10 and 20, but, in no case shall it be greater than 30 points out of a total of 100.
(3) The weight for the cost score shall be chosen by considering the—
(a) complexity of the assignment; and
(b) the relative importance of the technical aspect of the bids.
(4) The method proposed for the weighting of the costs and technical scores shall be stated clearly in the invitation to bid.
(5) The bidder obtaining the highest total score shall be recommended for an award of a contract, subject to any negotiations that may need to be held, and such negotiations shall be carried out in accordance with the provisions of these Regulations.
PART II
QUALITY-BASED SELECTION EVALUATION STAGES
(regulation 45(2))
STAGE ONE
Preliminary Examination of Technical Bid
1. Following the opening of a technical bid, a preliminary examination shall be conducted to determine—
(a) whether a bidder has qualified, on the basis of having passed or failed the selection, for the bid; and
(b) the responsiveness of bids to the terms of the bidding document.
2. A bid that fails to qualify or that is found to be non-responsive to the terms of the bidding document shall be eliminated from further evaluation.
STAGE TWO
Technical Bid Evaluated Against Technical Evaluation Criteria
1. A technical evaluation of a bid shall be conducted—
(a) to evaluate each technical bid against the technical evaluation criteria; and
(b) following the same method of evaluation as that utilised for the QCBS selection.
2. (1) The Evaluation Committee shall prepare a technical evaluation report of the technical bids received, which shall—
(a) substantiate the results of the evaluation;
(b) describe the relative strengths and weaknesses of the bids; and
(c) indicate which bid is recommended to proceed to the Cost Evaluation.
(2) The technical evaluation report shall be approved by the Contracts Committee prior to the Cost Evaluation.
STAGE THREE
Cost Evaluation
1. A cost evaluation shall be conducted by the—
(a) bidder who submitted the best evaluated technical bid being invited to submit a financial bid, where only technical bids were submitted; or
(b) opening of the financial bid of the bidder who submitted the best evaluated technical bid, where both technical and financial bids were submitted under the dual envelope method.
2. The financial bid shall be negotiated by the procuring entity in accordance with the provisions of these Regulations.
PART III
FIXED BUDGET SELECTION EVALUATION STAGES
(regulation 46(3))
STAGE ONE
Preliminary Examination
1. Following the opening of a technical bid, a preliminary examination shall be conducted to determine—
(a) Whether a bidder has qualified, on the basis of having passed or failed the selection for the bid; and
(b) the responsiveness of bids to the terms of the bidding document.
2. A bid that fails to qualify or that is found to be non-responsive to the terms of the bidding document shall be eliminated from further evaluation.
STAGE TWO
Technical Bid Evaluated Against Technical Evaluation Criteria
1. A technical evaluation of a bid shall be conducted—
(a) to evaluate each technical bid against the technical evaluation criteria; and
(b) following the same method of evaluation as that utilised for the QCBS selection.
2. (1) The Evaluation Committee shall prepare a technical evaluation report of the technical bids received, which report shall—
(a) substantiate the results of the evaluation;
(b) describe the relative strengths and weaknesses of the bids; and
(c) indicate which bid is recommended to proceed to the Cost Evaluation.
(2) The Evaluation Committee shall prepare and approve a technical evaluation report prior to the commencement of a cost evaluation.
3. (1) Each bidder shall be advised of the date and time set for the opening of the financial bids.
(2) Financial bids shall be opened publicly and at the public opening there shall be publicly read out the—
(a) name of the Bidder;
(b) technical score; and
(c) bid price.
STAGE THREE
Cost Evaluation
1. A cost evaluation shall be conducted, and any bid that exceeds the budget shall be eliminated.
2. Subject to any negotiations that may need to be held, the bidder who has submitted the highest ranked technical bid, of bids submitted within the budget, shall be recommended for the award of contract.
3. Negotiations shall be carried out in accordance with the provisions of these Regulations.
PART IV
LEAST COST SELECTION SUPPLIES AND WORKS EVALUATION STAGES
(regulation 47(4))
STAGE ONE
Preliminary Examination
1. A preliminary examination of a bid shall be conducted to determine—
(a) whether a bidder has qualified, on the basis of having passed or failed the selection for the bid; and
(b) the responsiveness of bids to the terms of the bidding document.
2. A bid that fails to qualify or that is found to be non-responsive to the terms of the bidding document shall be eliminated from further evaluation.
STAGE TWO
Technical Evaluation
A technical evaluation shall be made to determine technical compliance with the specification or scope of works in the bidding document, only for bids that have, in terms of paragraph 1 of Stage One—
(a) qualified;
(b) been responsive.
Technically non-compliant bids shall be eliminated from further evaluation.
STAGE THREE
Cost Evaluation
1. A cost evaluation only of technically compliant bids shall be conducted to—
(a) correct arithmetical errors; and
(b) convert bids to a common currency.
2. An evaluation committee may regard a bid as responsive or technically compliant if it contains—
(a) minor deviations that do not materially alter or depart from the characteristics, terms, conditions and other requirements set forth in the bidding documents;
(b) errors or oversights that are capable of being corrected without touching on the substance of the bid.
3. Any minor deviations shall be—
(a) quantified, to the extent possible;
(b) appropriately taken account of in the evaluation and comparison of bids; and
(c) clearly stated in the evaluation report.
4. The evaluation committee shall prepare an evaluation report of the bids received, which shall contain details of the—
(a) results of the evaluation;
(b) reasons for the rejection of any bids; and
(c) recommendation for the award of contract.
PART V
LEAST COST SELECTION SERVICES-EVALUATION STAGES
(regulation 48(3))
STAGE ONE
Preliminary Examination
1. A preliminary examination shall be conducted to determine—
(a) whether a bidder has qualified, on the basis of having passed or failed the selection for the bid; and
(b) the responsiveness of bids to the terms of the bidding document.
2. A bid that fails to qualify or that is found to be non-responsive to the terms of the bidding document shall be eliminated from further evaluation.
STAGE TWO
Technical Bid Evaluated Against Technical Evaluation Criteria
1. A technical evaluation of a bid shall be conducted—
(a) to evaluate each technical bid against the technical evaluation criteria; and
(b) following the same method of evaluation as that utilised for the QCBS selection.
2. A bidder who does not secure the qualifying score shall be eliminated from the evaluation.
3. The evaluation committee shall prepare a technical evaluation report which shall be approved by the contracts committee prior to the cost evaluation.
4. (1) Bidders who have secured the qualifying score shall be notified and be advised of the date and time set for the opening of the financial bids.
(2) The opening date of the financial bids shall be a date two weeks after the notification date referred to in subparagraph (1).
(3) Financial bids shall be opened publicly, and, at the public opening, there shall be publicly read out the—
(a) name of the bidder;
(b) technical score; and
(c) bid price.
STAGE THREE
Cost evaluation
1. (1) A cost evaluation shall be conducted by reviewing the—
(a) financial bids to correct any arithmetic errors; and
(b) conversion of bids to a single currency as stated in the invitation to bid.
(2) For the purposes of evaluation, cost shall exclude local taxes, but shall include other reimbursable expenses, such as travel, translation, printing of the report or secretarial expenses.
2. (1) Subject to any negotiations that may need to be held, the bidder who has submitted the lowest priced bid of all bids that have met the qualifying score, shall be recommended for the award of contract.
(2) Negotiations shall be carried out in accordance with the provisions of these Regulations.
PART VI
QUALIFICATION SELECTION EVALUATION STAGES
(regulation 49(3))
STAGE ONE
Expressions of Interest Evaluation
1. The procuring entity shall—
(a) evaluate the expressions of interest together and with any supporting information; and
(b) select a bidder with the most appropriate qualifications and references, to whom the contract is to be awarded.
2. The Evaluation Committee shall—
(a) prepare a technical evaluation report of the expressions of interest received; and
(b) submit the technical evaluation report to the Contracts Committee for its approval.
3. The procuring entity shall not proceed to Stage Two of the evaluation procedure before obtaining the approval of the Contracts Committee.
STAGE TWO
Cost Negotiations
1. The procuring entity shall request the selected bidder to negotiate the terms of the contract for the provision of the services.
2. Negotiations shall be carried out in accordance with the provisions of these Regulations.
FIFTH SCHEDULE
PRICE ADJUSTMENT FORMULA TO BE USED BY PROCURING ENTITIES WHERE NO INDUSTRY STANDARDS ARE AVAILABLE
(regulation 81(6))
Prices payable to the supplier, as stated in the contract, shall be subject to adjustment during performance of the contract to reflect changes in the cost of labour and material components in accordance with the formula:
In which:
P1 = adjustment amount payable to the supplier
Po = contract price (base price)
a = fixed element representing profits and overheads included in the contract price and generally in the range of 5 to 15 per cent.
b = estimated percentage of labour component in the contract price
c = estimated percentage of material component in the contract price
Lo, L1 = labour indices applicable to the contract on the base date and date adjustment.
Mo, M1 = material indices for the major raw material as applicable to the contract on the base for adjustment, respectively.
The coefficients a, b and c shall be specified by the purchaser in the bidding documents unless otherwise determined by the procuring entity. The sum of the three coefficients shall be one in every application of the formula. The bidder shall indicate the source of the indices and the base date indices in its bid. The base date is 30 days prior to the deadline for submission of the bids. The date of adjustment is………………………..weeks prior to the date of shipment (representing the mid-point of the period of manufacture).
Either party may invoke the above price adjustment formula subject to the following further conditions:
Price adjustment will be applied only if the resulting increase or decrease is more than 2 per cent of the contract price.
No price adjustment shall be allowed beyond the original delivery dates unless specifically stated in the extension letter. As a rule, no price adjustment shall be allowed for periods of delay for which the supplier is entirely responsible. The purchaser will, however, be entitled to any decrease in the price of the goods and services subject to adjustment. The total adjustment under this clause shall be subject to a ceiling of plus or minus ten 10 per cent to the contract price.
If the currency in which the contract price Po is expressed is different from the currency of the labour and material indices, a correction factor will be applied to avoid incorrect adjustments to the contract price. The correction factor shall correspond to the ratio of exchange rates between the two currencies on the base date and the date for adjustment as defined above.
No price adjustment shall be payable on the portion of the contract price paid by the supplier as advance payment.
“>PUBLIC PROCUREMENT AND ASSET DISPOSAL (INDEPENDENT COMPLAINTS REVIEW COMMITTEE) REGULATIONS
(under section 130)
(31st March, 2006)
ARRANGEMENT OF REGULATIONS
REGULATIONS
PART I
Preliminary
1. Citation
2. Interpretation
PART II
Establishment, Membership and Procedure of Independent Complaints Review Committee
3. Establishment of Independent Committee
4. Disqualification from appointment
5. Removal and resignation
6. Disclosure of interest
7. Procedure at meetings
8. Secretary
PART III
Complaints Procedure, orders and decisions of the Independent Committee
9. Lodging of complaints
10. Complaint format
11. Consideration of complaint
12. Interim order of Independent Committee
13. Matters not to be allowed
14. Decisions of Independent Committee
PART IV
Miscellaneous
15. Referring complaints to other bodies
16. Register of persons found with fault
17. Fines
18. Offence
Schedule
S.I. 20, 2006
PART I
Preliminary (regs 1-2)
These Regulations may be cited as the Public Procurement and Asset Disposal (Independent Complaints Review Committee) Regulations.
In these Regulations unless the context otherwise requires—
“Board” means the Public Procurement and Asset Disposal Board established under section 10 of the Act;
“Independent Committee” means the Independent Complaints Review Committee established under regulation 3;
“member” means a member of the Independent Committee appointed under regulation 3;
“Secretary” means Secretary of the Independent Committee appointed under regulation 8;
PART II
Establishment, Membership and Procedure of Independent Complaints Review Committee (regs 3-8)
3. Establishment of Independent Committee
(1) Pursuant to section 95 of the Act, there is hereby established a body to be known as the Independent Complaints Review Committee, which shall consist of five members appointed by the Minister.
(2) The Independent Committee shall consist of—
(a) a Chairperson; and
(b) four other members.
(3) A member of the Independent Committee shall be appointed for a period not exceeding five years.
(4) The Minister shall specify, when appointing members to the Independent Committee, such periods of appointment as ensure that the appointments of not more than one third of the members expire in any one year.
(5) In the absence of the Chairperson at any meeting the members present shall elect a Chairperson for that meeting from among themselves.
4. Disqualification from appointment
(1) No person shall be appointed as a member of the Independent Committee or continue to hold office who has—
(a) in terms of a law in force in any country—
(i) been adjudged or otherwise declared insolvent or bankrupt and has not been rehabilitated or discharged; or
(ii) made an assignment to, or arrangement or composition with, his creditors, which has not been rescinded or set aside; or
(b) within the period of 10 years immediately preceding the date of his appointment or election, been convicted—
(i) of a criminal offence; or
(ii) outside Botswana of an offence which, if committed within Botswana, would have been a criminal offence, and sentenced to imprisonment for six months or more without the option of a fine, whether or not that sentence has been suspended, and for which he has not received a free pardon;
(c) been convicted of an offence or dismissed from employment for an offence involving moral turpitude.
(2) The Minister shall suspend from office a member against whom criminal proceedings are instituted for an offence in respect of which a sentence of imprisonment may be imposed, and whilst that Committee member is so suspended he shall not carry out any duties or be entitled to any remuneration or allowances as a Committee member.
(1) A member may resign from the Independent Committee by giving 30 days notice, in writing, to the Minister.
(2) The Minister may remove a member from office if the Minister is satisfied that the member—
(a) has been adjudged guilty of having acted improperly as a member of the Independent Committee; or
(b) is inefficient;
(c) has been found to be physically or mentally incapable of performing his or her duties efficiently, and the members medical doctor has issued a certificate to that effect; or
(d) has failed to comply with the provisions of regulation 6(1).
(1) Where a member is present at a meeting of the Independent Committee to which any matter is the subject of consideration and in which matter the member is directly or indirectly interested in a private capacity, the member shall forthwith upon the commencement of the meeting
(a) disclose such interest and shall not, unless the Independent Committee otherwise directs, take part in any consideration or discussion of, or vote on, any question concerning that matter; and
(b) recuse himself or herself from the meeting, unless the person is otherwise directed in terms of paragraph (a).
(2) A disclosure of interest made under subsection (1) shall be recorded in the minutes of the meeting at which it is made.
(3) Where a member fails to—
(a) disclose his or her interest in a matter before the Committee for consideration, in accordance with subregulation (1); or
(b) recuse himself or herself from the meeting at which that matter is being considered,
and the Independent Committee makes a decision which benefits the member, the decision shall be void to the extent to which it benefits that member.
(4) A person who contravenes the provisions of subregulation (1) commits an offence and is liable to a fine not exceeding P500 or for a term of imprisonment not exceeding one year or to both.
(1) Meetings of the Independent Committee shall be held at such times and at such places as the Chairperson may determine, and at least four ordinary meetings of the Independent Committee shall be held in each year.
(2) At least seven days notice shall be given of any meeting of the Independent Committee, except in the case of an emergency.
(3) Special meetings of the Independent Committee may be convened by the Chairperson when the Chairperson considers such meetings to be necessary or desirable, and shall be convened by him or her within one month on the request, in writing, of at least three members of the Independent Committee setting out clearly the purpose for which the meeting is to be convened.
(4) At any meeting of the Independent Committee any three members shall constitute a quorum.
(5) Decisions of the Independent Committee at any meeting shall be decided by a majority of the members present at that meeting, and where there is equality of votes the Chairperson, or the person acting as Chairperson at the meeting, shall have a casting vote.
(6) The Independent Committee may co-opt experts holding relevant qualifications and experience to participate in the deliberations of the Independent Committee, but such experts shall not vote on any motion before the Independent Committee.
(7) Except as may be otherwise provided in the Act and these Regulations, the Independent Committee shall regulate its own affairs and proceedings.
(1) The Minister shall appoint a public officer as secretary of the Independent Committee.
(2) The Secretary may require any person involved with public procurement and asset disposal to submit to the Independent Committee such information and data as the Independent Committee may consider necessary for the discharge of its functions.
PART III
Complaints Procedure, orders and decisions of the Independent Committee (regs 9-14)
(1) Subject to subregulation (2) the Independent Committee shall deal with any matter that arises in terms of section 103(1) of the Act, such matter referred to in these Regulations as a complaint.
(2) The Independent Committee shall consider a complaint only where—
(a) the complaint had, before submission to the Independent Committee, been submitted and considered under the review procedures of the Board and a decision of the Board had been made on the complaint; and
(b) the complaint is lodged with the Independent Committee on application for review of the decision of the Board; and
(c) the complaint is lodged in the format set out in regulation 10.
(3) A complaint shall be lodged with the Independent Committee not more than 14 days after the decision of the Board referred to in subregulation (2).
(4) A complaint fee equal to one per cent of the estimated tender value pertaining to the complaint shall be paid at the lodging of each complaint, except that in no case shall the complaint fee payable be less than P1,500 or more than P350,000.
(5) The complaint fee paid shall be refunded where the complaint, after consideration by the Independent Committee, is found to have merit in relation to its substance.
(6) Every complaint lodged shall be accompanied by a lodging fee of P250.
(1) A complaint lodged with the Independent Committee under these Regulations shall be in Form 1, set out in the Schedule.
(2) The complaint shall be lodged together with copies of the following documents
(a) the decision of the Board on the complaint;
(b) the relevant set of bidding documents;
(c) the bidding process set forth in the invitation to tender;
(d) any document supporting the complaint that was submitted during the bidding process by the complainant; and
(e) any other document pertinent to the case.
(3) Each complainant shall, where the complaint concerns the procurement or disposing procedures, adduce sufficient evidence to prove either or both of the following—
(a) that the procurement procedures were contravened, or that the procuring entity acted unlawfully with respect to the procurement procedures;
(b) that the complainant would have been awarded the procurement contract had there been no contravention of the procurement procedures or other unlawful act.
11. Consideration of complaint
(1) The Independent Committee shall consider a complaint lodged in terms of these Regulations by—
(a) making reference to—
(i) the Board and to its records and decision on the matter;
(ii) the procuring or disposing entity concerned and to its records and decision on the matter, if any;
(iii) any procuring or disposing entity and to its records;
(b) seeking the advice of experts co-opted in terms of regulation 7(6);
(c) comparing the process of procurement under inquiry with previous procurement patterns that resulted in fraud or corruption or both; and
(d) conducting such further investigations as may be necessary for the making of an informed judgment on the matter.
(2) The Independent Committee shall make its decision on the complaint, lodged in compliance with the provisions of these Regulations, within a period of not more than 30 days from the receipt of the complaint.
(3) A person appearing before the Independent Committee shall appear in person and not by means of legal representation.
12. Interim order of Independent Committee
(1) Subject to subregulation (2) where the Independent Committee deems it to be in the interest of a particular procurement project being inquired into under these Regulations to suspend the procurement process for the purpose of an inquiry and in relation to such contract
(a) the Board has not made an award of the bid; and
(b) a letter has not been issued to the successful bidder indicating the commencement of the contract,
the Independent Committee may order that the procurement process be suspended for a period not exceeding 21 days to enable the inquiry to be completed.
(2) The Independent Committee may, for purposes of an inquiry, suspend a procurement project based on a contract where the requirements of subregulation (1)(a) and (b) are not fulfilled only where an aggrieved party has adduced sufficient evidence to demonstrate that the execution of such a contract—
(a) may cause substantial loss to the public revenue; or
(b) will prejudicially affect the public interest.
(1) The Independent Committee may not, except after consulting the Board, allow—
(a) a complaint that has been lodged to be withdrawn; or
(b) the complainant to conclude an agreement with the procuring entity in respect of the complaint.
(2) In any case where the Independent Committee allows an application made in terms of subregulation (1), its decision shall be published by notice in the Gazette and the file containing all the documents pertaining to the case shall be made available for public inspection during business hours, on payment of a fee of P50.
14. Decisions of Independent Committee
(1) The Independent Committee shall, after considering the complaint in accordance with regulation 11, make a decision on the matter as follows—
(a) uphold the decision of the Board and dismiss the complaint;
(b) reject the decision of the Board and order the procuring entity to—
(i) do or redo an action or proceeding;
(ii) suspend procurement process in terms of regulation 12;
(iii) cancel the procurement proceedings; or
(c) make a finding in favour of the complainant and award costs to the complainant that shall not exceed the commercial outlay for the preparation of a bidding package when the dispute relates to an award decision and less if the dispute is in respect of other complaints.
(2) If any allegation of fraud or bias is proved by the Independent Committee during the course of its enquiry, the Independent Committee shall order any person found guilty of the fraud or bias to be excluded from the procurement process that shall take place as a consequence of the decision of the Independent Committee under subregulation (1).
(3) The complainant shall be notified of the decision of the Independent Committee no later than three days after the decision is officially made.
(4) The decision of the Independent Committee on any complaint shall be published by notice in the Gazette.
PART IV
Miscellaneous (regs 15-18)
15. Referring complaints to other bodies
The Independent Committee may refer or report any aspect of their decisions on any complaint to the Attorney-General, the Directorate on Corruption and Economic Crime or other authority for further action or inquiry.
16. Register of persons found with fault
(1) The Independent Committee shall establish a register of persons against whom fault was found in any inquiry under these Regulations.
(2) The register shall give a brief statement of the—
(a) procurement project concerned; and
(b) decisions of the Board and the Independent Committee regarding the person concerned.
(3) The register shall be kept by the Secretary of the Independent Committee and shall be open to the public for examination on payment of a fee of P50 during business hours.
The Independent Committee may, after consultation with the Board, order a complainant against whom fault has been established in an inquiry to pay such fine as the Independent Committee may consider appropriate.
Any person who submits or provides to the Independent Committee any information that such person knows to be false or documents that such person knows to have been falsified, commits an offence and is liable to a fine not exceeding P500 or to imprisonment for a term not exceeding six months or to both.
SCHEDULE
FORMS
Form 1
COMPLAINT FORM
(reg. 9)
|
1. Particulars of complainant: |
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1.1 Name of complainant company or firm: ………………………………………. |
|
1.2 Address of complainant company or firm: ……………………………………. |
|
1.3 Name of complainant company or firm representative:……………………. |
|
1.4 Address of complainant company or firm representative:…………………. |
|
2. Procuring entity and procurement project |
|
2.1 Name and address of procuring entity: ……………………………………….. |
|
2.2 Procurement number: ……………………………………………………………. |
|
2.3 Description of project or goods being tendered: …………………………….. |
|
2.4 Approximate value of the tender: ……………………… ……………………… |
|
2.5 Tendering timetable: |
|
3. Description of complaint and statement of what complainant thinks would be a reasonable solution to the complaint: |
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4. Documents submitted in support of complaint: |
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Signed by ………………………………………….(Complainant Representative) |
|
Company Date Stamp ………………………………………………………………. |
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Received by ……………………………(Secretary of Independent Committee) |
|
Independent Committee Date Stamp ……………………………………….. |
PUBLIC PROCUREMENT AND ASSET DISPOSAL (SUSPENSION AND DE-LISTING OF CONTRACTORS) REGULATIONS
(section 50)
(26th June, 2009)
ARRANGEMENT OF REGULATIONS
REGULATIONS
1. Citation
2. Establishment of Suspension and De-listing Disciplinary Committee
3. Procedure at meetings
4. Lodging of complaint
5. Complaint by Board
6. Consideration of complaint
7. Decision of the Board
7A. Endorsement of conviction in register
7B. Termination of contracts
8. Register of suspended or de-listed contractors
SCHEDULE
S.I. 52, 2009,
S.I. 27, 2013.
These Regulations may be cited as the Public Procurement and Asset Disposal (Suspension and De-listing of Contractors) Regulations.
2. Establishment of Suspension and De-listing Disciplinary Committee
(1) There is hereby established a body to be known as the Suspension and De-listing Disciplinary Committee (hereinafter referred to as “the Disciplinary Committee”’).
(2) The composition of the Disciplinary Committee shall be as provided in a notice published in the Gazette.
(1) The Disciplinary Committee shall meet at such times and at such places as the Chairperson may determine after consultation with the Board.
(2) The Chairperson shall give members at least seven days’ notice of any meeting of the Disciplinary Committee, except in an emergency or as directed by the Board.
(3) The quorum for a meeting of the Disciplinary Committee is half the number of its members.
(4) The Board may direct the Disciplinary Committee with respect to any aspect of its procedure.
(1) Any person with a financial or contractual interest in a contract under the Act may lodge a complaint of any incidence of non-compliance with the code of conduct or terms of the contract by a contractor who is party to such contract with the Board.
(2) The non-compliance with the code of conduct or terms of the contract complained of under subregulation (1) shall arise from circumstances relating to the implementation by the contractor of the terms of the contract in which the complainant has a financial or contractual interest.
(3) The complainant shall substantiate the complaint of non-compliance to the satisfaction of the Board.
(4) The Board shall, upon receipt of a complaint under subregulation (1), submit the complaint to the Disciplinary Committee to be investigated.
(5) The code of conduct referred to in subregulation (1) shall be as set out in the Schedule to these Regulations.
Where the Board, in the execution of its functions under the Act, finds an instance of questionable conduct implying non-compliance with the code of conduct or terms of contract by a contractor, the Board shall forward a complaint to the Disciplinary Committee to be investigated.
(1) The Disciplinary Committee shall, upon receipt of a complaint submitted to it by the Board under regulation 4(4) or 5—
(a) investigate the complaint received by making reference to—
(i) the requirements of the code of conduct or terms of the contract, and
(ii) the procuring or disposing entity concerned and its records and decisions on the matter, if any;
(b) seek the advice of experts where necessary;
(c) compare the acts of the contractor under enquiry with established practices of contractors in a similar field; and
(d) conduct such further investigation as may be necessary for the making of an informed determination by the Disciplinary Committee on the matter.
(2) The Disciplinary Committee may, at any stage of the investigations, hold a hearing with the contractor under enquiry.
(3) The Disciplinary Committee shall, before the hearing under subregulation (2), furnish the contractor under enquiry, in writing, with the particulars of the complaint or allegations made against such contractor.
(4) The Disciplinary Committee shall give the contractor an opportunity to reply to the complaints or allegations made under subregulation (2).
(5) The Disciplinary Committee shall, after it has concluded its investigations and hearings and made its determination, forward its recommendations on the matter to the Board not later than 30 days after receipt of the complaint.
(6) A contractor required to appear before the Disciplinary Committee shall appear in person and not by means of legal representation.
(1) The Board shall, on receipt of the recommendations of the Disciplinary Committee under regulation 6(5), make a decision on the matter as follows—
(a) find in favour of the complainant and impose any of the following orders, or combination thereof, against the contractor—
(i) reprimand the contractor formally in writing;
(ii) suspend the contractor for a specified period of time from participating in Government procurement and asset disposal;
(iii) suspend the contractor conditionally on terms, pending fulfilment by the contractor of the conditions of suspension imposed;
(iv) issue a remedial order, where the contractor shall be ordered to comply with remedial measures within a specified time, failing which the contractor shall be suspended for a specified period of time from participating in Government procurement and asset disposal; or
(v) de-list and remove the contractor from the register of contractors; or
(b) find in favour of the contractor and dismiss the complaint.
(2) Where the Board orders that a contractor be de-listed under subsection (1)(a)(v)—
(a) the contractor shall submit to the Board, within seven days of receipt of the Board’s decision, all Board certificates in the contractor’s possession; and
(b) the Board shall notify, in writing, the procuring or disposing entity that the contractor has been de-listed.
(3) The Board may require a contractor to make restitution of any proceeds or other benefits received by the contractor relating to a contract under enquiry, which proceeds or benefit the Board has proven that the contractor was not entitled to.
(4) The decision of the Board under this regulation shall be made within 30 days of receipt of the recommendations of the Disciplinary Committee under regulation 6(5).
7A. Endorsement of conviction in register
The Board, on the recommendation of the Disciplinary Committee, shall determine the period within which the particulars of a contractor shall remain endorsed in the register of contractors in accordance with the provisions of the Corruption and Economic Crime Act (Cap. 08:05), and during such period no offer in respect of any contract from the contractor may be considered by a procuring or disposing entity:
Provided that, the period within which the particulars of a contractor shall remain in the register shall not be more than five years.
(1) Where a contractor has been de-listed and removed from the register of contractors under regulation 7(1)(a)(v) or the register has been endorsed in accordance with the Corruption and Economic Crime Act, a procuring or disposing entity may, in consultation with the Board, terminate any contract entered into with the contractor whose name has been endorsed in the register:
Provided that, in considering the termination of the contract, the procuring or disposing entity shall take into account the following circumstances—
(a) the extent and duration of the contract concerned;
(b) whether it is likely to conclude a similar contract with another contractor or within a specified time frame;
(c) the extent to which the contract has been executed;
(d) the urgency of the services to be delivered or supplied in terms of the contract;
(e) whether any costs will follow such termination; and
(f) any other factor which in the opinion of the procuring or disposing entity, may impact on the termination of the contract.
(2) The Board shall, during the period referred to in subregulation (1), disqualify a contractor whose contract has been terminated from making any offer or obtaining any contract relating to the procurement of specific works, services or supplies.
(3) The procuring or disposing entity shall take the decision to terminate a contractor’s contract—
(a) where the contractor has been convicted of an offence under section 28 or 29 of the Corruption and Economic Crime Act, after any appeal against the conviction or sentence, or both, has been finalised by a court; or
(b) where there has been a breach of contract or the provisions of the code of conduct by the contractor.
(4) Where a procuring or disposing entity has decided to terminate the contract of a contractor, the procuring or disposing entity shall, within 14 days of the decision, notify, in writing—
(a) the contractor whose contract has been terminated; and
(b) all other procuring or disposing entities,
of the decision and request such bodies not to enter into contracts with the contractor for such period within which such contractor has been de-listed.
8. Register of suspended or de-listed contractors
(1) The Board shall maintain an up-to-date register of suspended or de-listed contractors.
(2) The register shall be open to the public for examination.
SCHEDULE
CODE OF CONDUCT FOR CONTRACTORS
(reg. 4(5))
1. GENERAL
1.1 A contractor shall ensure that competent persons carry out the contractual obligations of the contractor.
1.2 A contractor shall ensure that certified copies of all mandatory certificates, professional qualifications, accreditation and affiliation of employees are kept in the office and shall be made available to the Board promptly on request.
1.3 A contractor shall ensure that all relevant requirements are provided for in procurement documents that services and products are delivered on time in line with the procurement documents’ service requirements.
2. DISCLOSURE OF INFORMATION
2.1 A contractor shall not disclose information acquired from or through its association or relationship with the Board or its Committees, or a Government department or agency which has not been made public on a potential or current service provider for the contractor’s advantage, material gain and advancement.
2.2 A contractor shall not use its, or his or her association or relationship (other than as allowed in the association agreement) with the Board or its Committees, or Government departments or agencies for the contractor’s advantage, material gain or advancement.
3. COLLUSION AND FRONTING
3.1 A contractor shall not manipulate his or her true shareholding, directorship, management, employees or financial resources in order to be compliant with the requirements of section 121 of the Act regarding categorisation of contractors in terms of ownership, etc.
3.2 A contractor shall not be involved in fronting, tokenism, window dressing and “rent a Motswana” practices during the tendering stage or when seeking registration in the register of contractors under section 116 of the Act. For the purposes of this code, the terms “fronting”, “tokenism”, “window dressing” and “rent a Motswana” mean the misrepresentation of a material fact of the ownership, management and control, as well as in the skilled and specialist positions (core to the purpose of existence) of a contractor in order to appear compliant with citizen reservation and citizen preferential treatment and for material gain, advancement or advantage in the procurement process.
3.3 A contractor shall not sublet or sub-contract without declaration at tender stage a disproportionate amount of work, or the core aspect of the assignment to a contractor who does not qualify for reservation or preferential treatment. This may also take the form of utilising the resources (human, equipment, facilities, material, financial, etc.) of a contractor who does not qualify for reservation or preferential treatment. In this regard the true material benefit and advancement does not meaningfully and tangibly accrue to the contractor the due reservation or preferential treatment.
3.4 A contractor shall not have a predominance of non-executive directors or tokenism whose qualification and experience does not correlate to the core business of the contractor. Passive ownership of an entity can also lead to some form of fronting.
3.5 A contractor shall not engage in any collusive practices that have a direct or indirect adverse impact on the cost of engagement to the procuring or disposing entities.
3.6 A contractor shall not engage in any activity that gives one bidder an improper and unethical advantage over other bidders.
4. PROFESSIONAL CONDUCT AND INTEGRITY
4.1 A contractor shall not submit false information to the Board in order to influence the decision of the Board to register such contractor in the register of contractors under section 116 of the Act.
4.2 A contractor shall not submit false information during the tendering process in order to deceive the Board, a procuring or disposing entity or clients into believing that the contractor has capabilities and capacities to perform contracts which the contractor is not capable of doing by:
4.2.1 Submitting the educational qualification documents and references of persons whom the contractor purports to be in his or her employees when they are not, or without such persons’consent to the Board or its committees; or
4.2.2 Overvaluing of the contractor’s assets as well as overcharging of professional fees by the contractor.
4.3 A contractor shall meet his or her contractual obligations in the delivery of products and services.
4.4 A contractor shall ensure that he or she conducts himself or herself professionally during the procurement process and honours contractual commitments timeously and in a professional manner.
4.5 A contractor shall ensure that the contractor’s obligations in terms of contracts with sub-contractors and agents are scrupulously and timeously met, particularly in regard to making payments.
4.7 A contractor shall not make spurious claims for additional payment and extension of time.
4.8 A contractor shall not use an advance mobilisation loan for any purpose than the intended purpose of that loan.
4.9 A contractor shall perform the contractor’s contractual duties in an unbiased and conscientious manner, bearing in mind the legitimate interests of all parties to the procurement process and the public.
4.10 A contractor shall not abandon the work that such contractor is contracted to do.
4.11 A contractor shall not fail to deliver work to the expectations and obligations as provided by the contract under which the registered contractor is contracted without any valid reason.
4.12 A contractor shall ensure that he or she delivers or performs his or her obligations under the contract according to the specifications of his or her contract with a procuring or disposing entity.
PUBLIC PROCUREMENT AND ASSET DISPOSAL (RETROACTIVE APPROVALS) ORDER
(section 44(3))
(23rd November, 2012)
ARRANGEMENT OF PARAGRAPHS
PARAGRAPH
1. Citation
2. Interpretation
3. Special circumstances for retroactive approvals
S.I. 90, 2012.
This Order may be cited as the Public Procurement and Asset Disposal (Retroactive Approvals) Order.
In this Order “environment” means the physical environment which includes fauna and flora located within the Republic of Botswana.
3. Special circumstances for retroactive approvals
The Board may by resolution approve, retroactively, a bid or invitation to tender issued by a procuring or a disposing entity where the job to be performed by a selected contractor or the service to be provided by a selected service provider is urgent and necessary—
(a) to protect life; or
(b) to protect the environment.
PUBLIC PROCUREMENT AND ASSET DISPOSAL (RESERVATION OF GOVERNMENT TENDERS FOR CITIZEN-OWNED ENTERPRISES) ORDER
(under section 72(1))
(28th February, 2020)
ARRANGEMENT OF PARAGRAPHS
PARAGRAPH
1. Citation
2. Reservation of Government tenders
3. Exemptions
S.I. 23, 2020.
This Order may be cited as the Public Procurement and Asset Disposal (Reservation of Government Tenders for Citizen-Owned Enterprises) Order.
2. Reservation of Government tenders
All works, supplies and services tenders up to the sum of P10 000 000 issued by the central Government, State-owned entities or other entities falling within the scope of section 3, as read with section 8 of the Act, shall be reserved for 100% citizen-owned small, medium and micro enterprises with a maximum annual turnover not exceeding P10 000 000.
An exemption from the provisions of paragraph 2 may apply with the prior approval of the Board or the Committee, where the central Government, State-owned entities or other entities falling within the scope of section 3, as read with section 8 of the Act, is satisfied that no 100% citizen-owned enterprise that is suitable and qualifies for the tender is available.
PUBLIC PROCUREMENT REGULATIONS
(section 150)
(28th March, 2023)
ARRANGEMENT OF REGULATIONS
REGULATION
PART I
Preliminary
1. Citation
2. Interpretation
3. Application of Regulations
PART II
Accounting Officers and Procuring Entities
4. Terms and conditions of delegation of functions of Accounting Officers
5. Delegation to another procuring entity
6. Outsourcing to procurement agent or procurement service provider
PART III
Evaluation Committees, User Departments, Central Agencies, etc.
7. Composition of Evaluation Committee
8. Functions of Evaluation Committee
9. Co-option of advisory panel of Evaluation Committee
10. Functions of user Department
11. Central agencies for common use items
PART IV
Selection and Methods of Procurement, etc.
12. Selection of procurement method
13. Bidding periods
14. Open domestic bidding method
15. Open international bidding method
16. Restricted domestic bidding method
17. Restricted international bidding method
18. Request for quotation proposals method
19. Micro procurement method
20. Direct procurement method
21. Request for proposals with competitive negotiations method
22. Competitive dialogue method
23. Reverse auction method
24. Unsolicited bid method
25. Best and final offer method
26. Negotiated procedure method
27. Expression of interest method
28. Hackathon method
29. Community participation method
30. Emergency procurement method
31. Procurement of highly sensitive works, services or supplies
32. Procurement of medicines and related medical supplies
PART V
Procedure and Processes of Procurement by Procuring Entities
33. Procurement planning
34. Contents of annual procurement plan
35. Aggregation of procurement requirements
36. Division of procurement requirement into lots
37. Initiation of procurement process
38. Approval of requisition to procure
39. Availability of funds
40. Standardisation of procurement
41. Categorisation of works, services or supplies
42. Potential sources
43. Pre-qualification of bidders
PART VI
Standardised Bidding Packages and Bidding Processes
44. Bidding documents
45. Selection of standardised bidding package
46. Validity of bids
47. Statement of procurement requirement
48. Pre-bid meetings and site visits
PART VII
Procedure for Tender Submission, Tender Opening and Evaluation, De-briefing of Bidder and Cancellation of Procurement Process
49. Methods of submission of bids
50. Receipt of bid and bid opening
51. Withdrawal of bids
52. Evaluation process
53. Clarification of bids during evaluation process
54. Evaluation of single envelope or package bid
55. Evaluation of dual envelope or package bid
56. Change of details of bids
57. Ad hoc de-briefing committee
58. Functions of ad hoc de-briefing committee
59. Choice of method of evaluation
60. Evaluation by quality and cost based selection
61. Evaluation by quality based selection
62. Evaluation by fixed budget selection
63. Evaluation by least cost selection works and supplies
64. Evaluation by least cost selection services
65. Evaluation by qualification selection method
66. Cancellation of tender
PART VIII
Procedure for Negotiation of Contracts and Award of Tenders
67. Negotiation of contracts
68. Award of tender
69. Types of contracts and pricing approaches
70. Lump sum contracts
71. Time-based or measured works contracts
72. Rate contracts
73. Framework contracts
74. Percentage based contracts
75. Cost reimbursable and target price contracts
76. Retainer and success fee contracts
77. Indefinite delivery contract or price agreement
78. Contents of contract
79. Change in circumstances of contractors
PART IX
Conditions for Deviation from Applicable Procurement Method, Procurement Process, etc.
80. Deviations
81. Monitoring and profile analysis of deviations
82. Alternative procurement process relating to external obligations
83. Retroactive procurement activities
PART X
Reservation and Preferential Treatment
84. Requirements for reservation and preference schemes
85. Skills transfer
86. Subcontracting
87. Timely payment for performed contracts
88. Reservation schemes
89. Preference schemes
90. Promotion and support of innovative products
91. Single preference for bidders
92. Unbundling of tenders
93. Security for tender and performance bond
94. Award of tenders based on rota system
95. Monitoring and evaluation
96. Beneficial owners
97. Primary contractors and subcontracting
PART XI
Procedure, Rules and Thresholds for Management, Amendment or Variation of Contracts
98. Contract management and responsibilities
99. Contract manager
100. Inspection of works, services and supplies
101. Inspection and acceptance of supplies
102. Termination of contracts
103. Termination of convenience
104. Contract amendments
105. Variation of contracts
106. Contract pricing
107. Price adjustment
108. Payment terms
109. Payment structure
110. Advance payments
111. Interim or phased payments
112. Retained payments
113. Payment of security
114. Payment documents
115. Payment period
116. Payment and payment delays
117. Currency of money used for payment and related limitations
118. Export and import licence responsibility
119. Insurance or indemnity
120. Currency fluctuations
121. Performance security
PART XII
Ethics and Transparency in Public Procurement
122. Declaration of interest
123. Confidentiality relating to procurement process
124. Declassification of information
125. Publication of decisions
PART XIII
Maintenance of Records by Procuring Entities
126. Maintenance of records
127. Contract records
128. Requirement for reporting
129. Safe keeping of documents
130. Access to documents relating to procurement
PART XIV
Procedure for Monitoring and Compliance by Authority
131. Procurement, contract and performance audits
132. Compliance enforcement
133. Reporting to Authority by procuring entities
PART XV
Procedure for investigations by Authority
134. Investigations
135. Co-operation with Public Oversight Agencies
136. Delegation of functions and powers of Authority
PART XVI
Registration of Contractors
137. Contractor’s Register
138. Registration requirements
139. Application for registration
140. Inspection of contractor’s business
141. Inspection report
142. Consideration of application for registration
143. Certificate of registration
144. Refusal to register contractors
145. Application for upgrading or downgrading
146. Upgrading or downgrading of contractors
147. Non-registration of citizen contractors in micro procurement
148. Grading of contractors
149. Removal from Contractors’ Register
150. Restoration to Contractors’ Register
151. Updating and correction of registration system
152. Registration fees
153. Subscription fees
154. Renewal of registration
155. Appeal of decision of Authority to not register contractors
PART XVII
Suspension and De-listing of Contractors
156. Suspension and de-listing committee
157. Operations of suspension and de-listing committee
158. Tenure of office of members of suspension and de-listing committee
159. Meetings of suspension and de-listing committee
160. Grounds and sanctions for suspension, de-listing or debarring of contractors
161. Investigations into conduct of contractors
162. Submission of allegations to Authority
163. Investigations by Authority
164. Investigation officers of Authority
165. Decisions of Authority
166. Suspended or de-listed contractors
167. Termination of contracts with de-listed contractors
168. Register of suspended or de-listed contractors
169. Reinstatement of contractors
170. Appeal against decision to suspend or de-list
PART XVIII
Procedure for Lodging of Complaints and Appeals
171. Procedure for lodging of complaints
172. Suspension of procurement process
173. Consideration of complaints
174. Right to fair hearing
175. Decisions of Accounting Officer
176. Remedies by Accounting Officer
177. Appointment of independent review panel
178. Disclosure of interest and confidentiality by members of independent review panel
179. Withdrawal of complaints
PART XIX
Fees
180. Fees
S.I. 23, 2023,
S.I. 68, 2023.
PART I
Preliminary (regs 1-3)
These Regulations may be cited as the Public Procurement Regulations.
In these Regulations, unless the context otherwise requires—
“acquisition” means the acquisition of category 1 material to meet the requirements of equipment for future capability establishment using sound system engineering, project management and contracting methodologies;
“authorised person” means a person who has been given authority by an Accounting Officer to access information;
“award” means a decision by the Accounting Officer, or any other person of a procuring entity to which the Accounting Officer may delegate powers of adjudication and award a tender within specified financial ceilings, to determine the successful bidder;
“best and final offer” means a revision of an offer submitted after a negotiation of a tender is completed that contain the bidder’s most favourable terms for price, service and goods to be delivered;
“best practice” means in accordance with industry standards;
“call off order” means an order placed by a procuring entity under general terms and pricing on a range of goods under a framework contract, without having to negotiate the terms every time;
“contract amendment” means a change to the terms and conditions of an awarded contract;
“contract variation” or “change order” means a change to the price, completion date or statement of the requirements of a contract to facilitate adaptation to any event or change in such requirements;
“deviation” means to depart from a procurement process, procurement method or document provided in the Act;
“direct procurement method” means a sole source procurement method for a procurement requirement where there are exceptional circumstances that prevent the use of competition;
“dual envelope or package method” means a one stage-two envelopes method in which a bid is submitted in an outer sealed envelope or package containing two separately sealed and labelled envelopes or packages, marked and containing separate technical and financial proposals which are opened on different dates, in separate bid openings;
“electronic” means in relation to technology, having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities;
“emergency procurement” means a procurement process carried out under circumstances which are urgent, unforeseeable and not caused by any dilatory conduct of a procuring entity;
“expression of interest” means a qualification process wherein a bidder is invited to express an interest in providing works, services or supplies;
“guidelines” means any advice given by the Authority through any circular that may be issued to the procuring entities in accordance with section 8(1)(j) of the Act;
“international contractor” means a bidder who is not registered as a contractor in accordance with the laws of Botswana and whose operations are not based in Botswana;
“least cost selection” means a method of evaluation that recommends the lowest price of a bid which meets a technical requirement and a commercial requirement;
“micro procurement” means the acquisition of a standard and low value works, services or supplies;
“open domestic bidding” means a procurement method open to participation on equal terms by all service providers domiciled in Botswana;
“open international bidding” means a procurement method open to competition and participation by all service providers through advertisement of a procurement opportunity which seeks to include an international contractor;
“procurement method” means the procurement method provided for under section 52 of the Act;
“procurement process” means the successive stages in the procurement cycle including any stage of the procurement process from planning to contract management;
“quality and cost based selection evaluation” means an evaluation method that takes into account the quality and cost of a bid in a process under which a technical bid is evaluated without access to a financial bid;
“records” means any documents or information relating to any stage of a procurement process and includes—
(a) an electronic and manual archive containing the document or information relating to a procurement process; or
(b) a record received or kept by a public body, in the exercise of its functions;
“request for quotations” means a simplified procurement method which compares price quotations or proposals obtained from a number of providers;
“responsive bid” means a bid which conforms to all the terms, conditions and requirements of a solicitation document without any material deviation, reservation or omission from the terms, conditions and requirements of the solicitation document;
“restricted domestic bidding” means the direct solicitation from a limited number of service providers domiciled in Botswana for the procurement of works, services or supplies;
“restricted international bidding” means the direct solicitation from a limited number of service providers domiciled in Botswana or outside Botswana for the procurement of works, services or supplies;
“single envelope or package submission method” means a one stage single envelope or package method in which a bid is submitted in a one sealed envelope or package which is opened on the specified date and time in a single bid opening;
“standardisation” means standardisation of procurement of works, services or supplies;
“statement of requirement” means a document prepared by a procuring entity providing a correct and competitive description of the subject of the procurement for the purposes of creating a fair and open competition;
“unsolicited bid” means a proposal that demonstrates substantial, technical or financial innovation, or meets an unidentified need submitted to a procuring entity for consideration in the absence of an invitation by the procuring entity;
“user” means a procuring entity, system administrator, auditor, civil society organisation and any other user as may be approved by the Authority; and
“user Department” means any department, division, branch or unit of a procuring entity, which initiates a procurement requirement and is the user of the procurement requirement.
(1) These Regulations shall apply to all public procurement, except procurement of works, services or supplies determined by the Minister to require a different procurement procedure or method, for purposes of national security or any other reason the Minister may deem reasonable.
(2) A dispute relating to the applicability of the Act shall, in writing and with any supporting document, be submitted to the Minister.
(3) The Minister shall make a decision on a dispute referred to the Minister in terms of this regulation within 21 days.
(4) Where the Minister fails to resolve a dispute referred to in terms of this regulation, the complainant may refer the dispute to the Tribunal.
PART II
Accounting Officers and Procuring Entities (regs 4-6)
4. Terms and conditions of delegation of functions of Accounting Officers
(1) An Accounting Officer may delegate procurement functions of a—
(a) procurement oversight unit and procurement unit to a user Department within a procuring entity; and
(b) procurement unit and user department to another procuring entity, or to a procurement agent or a procurement service provider.
(2) An Accounting Officer may delegate a procurement function of a procurement oversight unit or procurement unit to a department within a procuring entity, in terms subregulation (1), subject to any value limitations or any other exceptions where—
(a) the procuring entity has substantial procurement workload which would be effectively managed by the department;
(b) the procuring entity has a specialised procurement which would be effectively managed by the department;
(c) the department is not within the geographical location of a procurement oversight unit or procurement unit and a delegation would reduce costs, and reduce practical and logistical challenges;
(d) the department operates as an independent department and would effectively manage the delegated procurement function;
(e) it is cost effective to delegate;
(f) the structure of a procuring entity does not allow for the establishment of a procurement unit; or
(g) there are other reasonable circumstances that may arise.
(3) Where an Accounting Officer delegates a procurement function to a department within a procuring entity in terms of this regulation, he or she shall establish a—
(a) procurement oversight unit for the department; and
(b) procurement unit for the department.
(4) A procurement oversight unit referred to under subregulation (3)(a) and a procurement unit referred to under subregulation (3)(b) shall—
(a) carry out the delegated procurement functions in accordance with the provisions of the Act;
(b) be responsible for the delegated procurement functions and any decisions made in the performance of such delegated procurement functions;
(c) submit consolidated reports on all procurement activities of a procuring entity to the procuring entity;
(d) liaise with the Authority on behalf of a procuring entity;
(e) advise a procuring entity on any matter relating to procurement;
(f) submit such reports as may be required to a procurement oversight unit of a procuring entity;
(g) give a copy of the minutes of all of its meetings to a procurement oversight unit of a procuring entity;
(h) seek advice and guidance on any matter relating to public procurement from a procurement oversight unit or procurement unit of a procuring entity; and
(i) request a procurement oversight unit or procurement unit to act on its behalf on matters requiring liaison with the Authority.
(5) An Accounting Officer shall, where the Accounting Officer delegates his or her procurement functions under this regulation, ensure the independence and segregation of duties in accordance with the Act.
(6) An Accounting Officer may, in writing, revoke any delegation of a procurement function to a procurement oversight unit or a procurement unit where—
(a) the procurement oversight unit or a procurement unit fails to comply with the terms and conditions of the delegation, or the provisions of the Act;
(b) the circumstances of the delegation have changed;
(c) a malpractice is suspected, alleged or proved; or
(d) there are other reasonable circumstances.
(7) An Accounting Officer shall not delegate any of the following functions of a procurement unit to a department within a procuring entity—
(a) the preparation of any report required for submission to a procurement oversight unit or Accounting Officer;
(b) the provision of overall guidance on the development of procurement within the procuring entity;
(c) any recommendation to an Accounting Officer in respect of a delegation of a procurement function;
(d) the coordination of any procurement process of all departments of the procuring entity;
(e) the maintenance of a list or register of all awarded contracts; and
(f) the planning and management of all procurement activities or processes of the procuring entity.
(8) An Accounting Officer may not delegate, in accordance with section 43 of the Act, the establishment of a—
(a) procurement oversight unit; or
(b) procurement unit.
(9) Where an Accounting Officer delegates his or her procurement functions under this regulation to an employee under a procurement oversight unit, or an employee under a procurement unit, such employee shall not, while exercising the delegated functions, be involved in any activity of the procurement oversight unit or procurement unit.
(10) An Accounting Officer shall not assign an employee to a procurement oversight unit if the Accounting Officer delegates his or her functions to the employee.
5. Delegation to another procuring entity
(1) Subject to the provisions of the Act, an Accounting Officer may delegate an entire procurement process to another procuring entity where—
(a) the delegating procuring entity does not have the capacity to enable it to comply with the provisions of the Act;
(b) the Accounting Officer considers that it is economical or efficient to delegate the entire procurement process; or
(c) there is any other circumstance that justifies the delegation.
(2) Notwithstanding subregulation (1), an Accounting Officer may delegate a limited procurement process to another procuring entity where—
(a) the other procuring entity has employees that possess a specialised skill, expertise or experience in the subject matter of such procurement process;
(b) a requirement relating to such procurement process is subject to common procurement;
(c) a project is jointly implemented by both procuring entities;
(d) it would be economical or efficient to delegate a procurement requirement; or
(e) there is any other circumstance that justifies the delegation.
(3) For purposes of this regulation, “common procurement” means a procurement requirement that is in common use by more than one procuring entity.
(4) Where a procurement process has been delegated in terms of subregulation (2), the Accounting Officers shall agree on—
(a) any process that may be excluded from a contract entered between the two procuring entities, in the case of a delegation of the entire procurement process;
(b) the type of a requirement or project to be the subject of the contract referred to under paragraph (a), in the case of a limited delegation of a procurement process;
(c) the mechanism for implementation of a procurement requirement;
(d) the reporting, monitoring, procedures and responsibilities relating to the procurement process;
(e) any limitations or exceptions to the contract referred to under paragraph (a); and
(f) any cost to be paid.
(5) An agreement referred to under subregulation (3) shall be confirmed in writing, and signed, by the Accounting Officers.
(6) Where a limited procurement requirement is delegated to another procuring entity, the institutional arrangement for the approval of the limited procurement requirement shall be agreed upon by the Accounting Officers and may include—
(a) the approval of a procurement oversight unit of a procuring entity that initiates such limited procurement requirement;
(b) the approval of a procurement oversight unit of a procuring entity to which a limited procurement requirement is being delegated;
(c) a limited procurement requirement that may be observed by a representative of a procurement oversight unit of a procuring entity that initiates the limited procurement requirement;
(d) a limited procurement requirement that a representative of a procurement oversight unit of a procuring entity that initiates the limited procurement requirement may participate in the meetings of a procurement oversight unit to which such limited procurement requirement is being delegated; or
(e) a limited procurement requirement for approval by the procurement oversight units of the procuring entities.
(7) An Accounting Officer shall submit a copy of the agreement referred to under subregulation (6) to the Authority.
6. Outsourcing to procurement agent or procurement service provider
(1) A procurement agent or a procurement service provider appointed as such under section 44 of the Act shall not carry out the procurement functions of a procurement oversight unit and an Accounting Officer.
(2) The procurement functions of a procuring entity that may be exercised by a procurement agent or a procurement service provider shall be to—
(a) advise a user department on an individual procurement method or practice;
(b) recommend an appropriate procurement method; and
(c) prepare—
(i) a statement of any requirement or of terms of reference,
(ii) a solicitation document and clarification or amendment,
(iii) a contract document, and
(iv) any amendment to a contract.
(3) The functions of a procuring entity relating to contract management that may be exercised by a procurement agent or a procurement service provider shall be to—
(a) administer and manage a contract;
(b) report any departure from the terms of a contract to a procurement unit;
(c) prepare any change order in accordance with the terms of a contract; or
(d) certify an invoice for any payment to a contractor.
(4) A procurement agent or a procurement service provider shall comply with a procurement process relating to the use of a standard tender document and with the guidelines issued by the Authority.
(5) An Accounting Officer shall, where he or she appoints a procurement agent or a procurement service provider in terms of section 44 of the Act, to perform the functions under this regulation, the Accounting Officer and the procurement agent or the procurement service provider shall enter into an agreement specifying—
(a) the type of a requirement or project that is subject to a contract;
(b) the mechanism for the implementation of the functions related to contract management;
(c) the mechanism for reporting, monitoring a procedure and responsibilities;
(d) any limitation or exception to a contract; and
(e) the conditions of payment of costs involved in contract management.
(6) An agreement referred to in subregulation (5) shall be confirmed in writing and signed by—
(a) an Accounting Officer and a procurement agent or a procurement service provider; or
(b) a representative of an Accounting Officer and a representative of a procurement agent or procurement service provider, duly authorised by the Accounting Officer or the procurement agent or the procurement service provider.
(7) An Accounting Officer shall not appoint the same procurement agent or procurement service provider to exercise procurement functions and functions relating to contract management where there is conflict of interest, or where conflict of interest is likely to arise.
(8) An Accounting Officer shall submit a copy of the agreement referred to under subregulation (6) to the Authority within 30 days.
(9) A procurement agent or procurement service provider shall perform the functions delegated to him or her without the involvement of an employee of a procuring entity.
(10) A procuring entity shall review and may approve the work done by a procurement agent or procurement service provider.
PART III
Evaluation Committees, User Departments, Central Agencies, etc. (regs 7-11)
7. Composition of Evaluation Committee
(1) The members of an Evaluation Committee shall be appointed by an Accounting Officer and shall consist of not less than three members, which may include a member who is not an employee of a procuring entity, where the expertise of such employee is required.
(2) Notwithstanding subregulation (1), the membership of an Evaluation Committee may include one or more members of a user Department, as may be appropriate, and any person involved in the preparation of a bidding document if the Accounting Officer considers it advantageous to the type and complexity of the procurement.
(3) In appointing the members of an Evaluation Committee, an Accounting Officer shall select persons who have skills, knowledge and experience relevant to procurement, which may include—
(a) technical skills;
(b) procurement or contracting skills;
(c) accounting, financial management and analytical skills; and
(d) law.
(4) The maximum number, and level of expertise, of members of an Evaluation Committee, shall depend on the value and complexity of a subject matter of procurement.
(5) An Accounting Officer shall appoint the Chairperson of an Evaluation Committee from amongst the members.
(6) The Vice Chairperson of an Evaluation Committee shall be elected by the members amongst their number.
(7) The Accounting officer shall appoint any person from the relevant procurement unit as the secretary of the Evaluation Committee but who shall not be a member of such Evaluation Committee.
(8) The secretary of the Evaluation Committee shall—
(a) provide technical input in terms of compliance with the Act;
(b) liaise with the Chairperson of the Evaluation Committee as may be directed by such members;
(c) keep and maintain records of the attendance of the meetings of the Evaluation Committee, and take minutes of all deliberations of such Evaluation Committee;
(d) ensure that all records, including any bid, are kept and maintained in a secured place, and shall provide any relevant information or document to the Evaluation Committee;
(e) facilitate the official communication with a bidder, where clarification is required; and
(f) provide logistical support to the Evaluation Committee.
8. Functions of Evaluation Committee
(1) The functions of an Evaluation Committee shall be to—
(a) conduct the compliance, technical and financial evaluation of a tender or a proposal to tender in line with the terms and conditions, and using the criteria, set out in the tender document within a period that may be specified by the Authority;
(b) exercise due diligence when evaluating a tender or a proposal to tender;
(c) seek clarification from a contractor on a tender or a proposal to tender being evaluated, through the secretary of the Evaluation Committee;
(d) prepare a consolidated report on any analysis of a tender, the final ratings assigned to each bid and make recommendations; and
(e) submit the consolidated report referred to in paragraph (d) to a procurement unit.
(2) The functions of an Evaluation Committee to assess a bid and make recommendation shall not be delegated.
(3) An Evaluation Committee shall, after completing an evaluation, prepare an evaluation report in Form A set out in Schedule 1.
(4) An evaluation report referred to under subregulation (3) shall—
(a) provide for the minutes of any meeting held to evaluate a tender or a proposal to tender, where applicable;
(b) describe the steps of an evaluation process highlighting the significant issues and the manner in which an Evaluation Committee reached its conclusions;
(c) provide for any decision made by an Evaluation Committee in the ranking of the substantially responsive bids and the rejection of non-responsive bids;
(d) provide for a comment on the effectiveness and the ineffectiveness, if any, of a bidding process;
(e) make a recommendation on the outcome of an evaluation;
(f) be signed by every member of an Evaluation Committee; and
(g) submitted to a relevant procurement unit for quality.
(5) A member of an Evaluation Committee shall exercise the functions of the Evaluation Committee independently from other members.
9. Co-option of advisory panel of Evaluation Committee
An Evaluation Committee may, where it considers it necessary, through a procurement unit, co-opt any person whose presence at a meeting of the Evaluation Committee is deemed necessary to—
(a) attend and participate in the deliberations at the meeting of the Evaluation Committee; or
(b) provide expertise or technical assistance in the evaluation process.
10. Functions of user Departments
(1) A user Department shall be responsible for the following within the Department—
(a) for the formulation of a procurement requirement for works, services or supplies;
(b) for the preparation of a procurement plan provided under section 71 of the Act in the manner as may be determined by the Authority, for any requirement for which funds have been included in the approved budget of a procuring entity, and submit the procurement plan to a procurement unit for consolidation;
(c) for the implementation of a procurement plan;
(d) for the strategic decision on whether or not the most economic and efficient procurement can be best achieved by separating contracts for each procurement;
(e) for the preparation of a budget estimate based on a prevailing market price and shall update the budget estimate from time to time;
(f) for the provision of a technical advice to a procuring entity;
(g) where required by an Accounting Officer, for the participation in the evaluation of a bid;
(h) where required by an Accounting Officer, to manage a contract under the supervision of a procurement unit;
(i) for the keeping and maintenance of any record of a contract management in accordance with a record management policy of a procuring entity; and
(j) for the preparation of any report required for submission to a procurement oversight unit or an Accounting Officer.
(2) A user Department shall, in preparing a procurement plan referred to under subregulation (1), ensure that a correct method of procurement is used for each requirement of the procurement.
(3) A user Department shall not procure works, services or supplies which are not included in a procurement plan without the approval of an Accounting Officer.
11. Central agencies for common use items
(1) A central agency shall, for purposes of procurement of common use items in terms of section 51(3) of the Act—
(a) use a framework contract for a procurement of common use items based on the needs and demands of a procuring entity in accordance with these Regulations; and
(b) arrange for the procurement of common use items by a procuring entity through a framework contract.
(2) A central agency may, from time to time, provide an opportunity to any new bidder to participate in a procurement process for common use items, and the name of any successful bidder shall be included in the list of service providers and suppliers.
(3) A procuring entity shall, for purposes of procurement referred to in subregulation (1)—
(a) by the end of the month of December every year, submit to a central agency, its provisional annual budget estimates of the required common use items, in accordance with the format provided by a central agency, which shall include a description, specification, statement of requirement and quantity, of the common use items;
(b) procure common use items from a bidder who has been awarded a framework contract by a central agency through the placement of a call off order prepared by a procurement unit and approved by an Accounting Officer; and
(c) submit to a central agency, a monthly report in terms of a format provided by the central agency.
(4) A procuring entity shall, in accordance with a contract, prepare and place, a call off order to a bidder who has been awarded a framework contract, and shall—
(a) make a payment for goods and services delivered and accepted;
(b) make a claim for any damages caused by a delayed delivery of goods and services, or any other act; and
(c) report to a central agency any breach, or unsatisfactory performance.
(5) A central agency may enter into a framework contract under this regulation with more than one service provider, where in the opinion of the central agency, one service provider cannot meet a requirement of a procuring entity.
(6) A central agency shall consolidate a quarterly report submitted to the central agency by a procuring entity on a procurement made through a framework contract indicating, but not limited to, the name of the supplier, and description, quality and value of works, services and supplies, submit the quarterly report to the Authority.
(7) A central agency shall, by Notice in the Gazette, publish a list of the names of the suppliers and service providers who have been awarded framework contracts.
(8) A central agency shall make a determination on a report submitted by a procuring entity, detailing the performance of a contractor, and prepare an End of Activity Report with appropriate recommendations for submission to the Authority.
PART IV
Selection and Methods of Procurement, etc. (regs 12-32)
12. Selection of procurement method
(1) A procuring entity shall select a procurement method on the basis of—
(a) an estimated value of a procurement requirement; or
(b) the circumstances pertaining to a procurement requirement.
(2) An estimated value referred to under subregulation (1)(a) shall be the main criterion in the determination of a choice of a procurement method and the choice shall be made in accordance with the guidelines issued by the Authority.
(1) A bidding period shall be for a duration as may be necessary to accommodate the—
(a) location of a shortlisted or potential bidder and the time required for the delivery or transmission of a bid;
(b) level of detail required in a bid; or
(c) anticipated duration of a procurement process.
(2) Notwithstanding subregulation (1), a minimum bidding period shall, unless otherwise determined by the Authority, be—
(a) 20 days, in the case of an open international competitive bidding;
(b) 10 days, in the case of an open domestic bidding;
(c) five days, in the case of a selective tendering on the basis of a shortlist;
(d) five days, in the case of a direct appointment procurement;
(e) three days, in the case of a request for quotations; or
(f) 10 days, in the case of any other procurement method provided in the Act, except micro procurement which does not have a minimum bidding period.
(3) A procuring entity shall consider the risk and complexity of a procurement, when determining the appropriate bidding period of each bid.
(4) An Accounting Officer may authorise a shorter bidding period where justifiable and as may be appropriate.
14. Open domestic bidding method
(1) Except as may be provided in these Regulations, a procuring entity shall conduct procurement by means of an open domestic bidding method.
(2) A procuring entity shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish an invitation to tender, which shall be open to every bidder for the submission of a bid for the open domestic bidding method.
15. Open international bidding method
(1) A procuring entity may, with a written approval of an Accounting Officer, opt to conduct procurement by means of an open international bidding method instead of an open domestic bidding, where—
(a) competition may be enhanced by the participation of an international contractor in the bidding process, where there is limited or no domestic capacity;
(b) the participation by an international contractor may increase value for money for the procurement; or
(c) the technical complexity of a procurement requirement requires the participation of an international contractor.
(2) A procuring entity shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media, Government portal, international publication, or professional or trade journal with international circulation, publish an invitation to tender, which shall be open to every bidder for the submission of a bid for the open international bidding method.
(3) Nothing shall prevent a local contractor from participating in an open international bidding.
16. Restricted domestic bidding method
(1) A procuring entity may, with a written approval of an Accounting Officer, conduct procurement by means of a restricted domestic bidding where—
(a) the works, services or supplies are available from a limited number of service providers; or
(b) there is an exceptional circumstance that justifies a departure from the selection of an open domestic bidding method.
(2) An invitation to tender under this regulation shall, in writing, be made to a limited number of bidders without publishing the invitation to tender in the manner provided in these Regulations.
(3) A procurement entity shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish a list of an approved shortlisted bidders, except shortlisted bidders of a sensitive and classified procurement.
17. Restricted international bidding method
(1) A procuring entity may, with a written approval of an Accounting Officer, conduct procurement by means of a restricted international bidding method where—
(a) the works, services or supplies are available from a limited number of service providers; or
(b) there is an exceptional circumstance that justifies a departure from the selection of an open international bidding method.
(2) An invitation to tender under this regulation shall, in writing, be made to a limited number of bidders without publishing the invitation to tender in the manner provided in these Regulations.
(3) A procurement entity unit shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish a list of approved shortlisted bidders, except shortlisted bidders of a sensitive and classified procurement.
18. Request for quotation method
(1) A procuring entity may conduct procurement by means of a request for a quotation method where the estimated value of a procurement does not exceed the threshold stated in the guidelines issued by the Authority.
(2) Where a request for quotation method is used, a procuring entity shall make an invitation to tender in written bidding document addressed to a limited number of bidders without publishing the invitation to tender in the manner provided in these Regulations.
(3) A procuring entity shall obtain at least five quotations as may be practicable.
(4) Notwithstanding subregulation (3), where it is not practicable and subject to a written justification, a procuring entity may obtain less than five quotations.
(1) A procuring entity may conduct procurement by means of a micro procurement method where the estimated value of the project is within the related micro procurement.
(2) In using a micro procurement method, a procuring entity may select a supplier on a sole supplier basis without competition and with the following requirements—
(a) request for quotation;
(b) quotation; and
(c) purchase order.
(3) A procuring entity shall request a bidder for the original copy of an invoice or receipt denoting the works, services or supplies procured, and the price quoted and annotated with a name of the procuring entity procuring the works, services or supplies.
(4) A procuring entity shall ensure that value for money is obtained to the extent practical under a micro procurement method.
(5) An officer of a procuring entity, who is responsible for the conduct of procurement by means of a micro procurement method under this regulation, shall submit a monthly report to an Accounting Officer.
(6) An Accounting Officer shall submit a report referred to under subregulation (5) to the Authority in the manner determined by the Authority.
(7) The cumulative cost of a micro procurement in a year shall, except with the approval of the Authority, not exceed such percentage of an annual procurement budget as may be determined by the Authority.
(8) An informal sector may be exempted from the requirement under this regulation.
(1) A procuring entity may conduct procurement by means of a direct procurement method where the selection of a contractor is made on a sole supplier basis without competition and—
(a) there is insufficient time to conduct procurement by means of any other procurement method due to an emergency occurrence;
(b) the works, services or supplies are available from one contractor;
(c) any additional works, services or supplies are required to be compatible with the existing works, services or supplies, and it is advantageous or necessary to purchase the additional works, services or supplies from the original supplier, and the price of such additional works, services or supplies is reasonable;
(d) it is essential or preferable to purchase any 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, and the price on the works, services or supplies is reasonable; or
(e) can be justified in any given circumstance.
(2) A procuring entity shall not commence any procurement process under a direct procurement method without—
(a) justification to an Accounting Officer on the need to use a direct procurement method; and
(b) the approval of an Accounting Officer.
(3) A procuring entity shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish the name of a contractor who has been approved for direct procurement, except the name of a contractor who has been approved for sensitive and classified procurement.
(4) An Accounting Officer may award a tender for a procurement under this regulation if he or she is satisfied that the procurement has been sufficiently demonstrated by a procuring entity to be of value for money.
21. Request for proposals with competitive negotiations method
(1) A procuring entity shall request for an approval from an Accounting Officer to conduct procurement by means of a request for proposal with competitive negotiation method.
(2) A procuring entity shall, after the approval of an Accounting Officer in terms of subregulation (1), invite the relevant bidder to submit a bid for a competitive negotiation.
(3) An Evaluation Committee shall, where a request for proposal with competitive negotiation method is used—
(a) negotiate with a bidder on the recommendation of a procurement unit;
(b) evaluate a tender under this regulation; and
(c) prepare a report on the negotiation referred to under paragraph (a) and submit the report to a procurement unit for provisional opinion.
(4) An Accounting Officer shall request any identified bidder to revise his or her bid by submitting the best and final offer within a period not exceeding seven days from the date of such request.
(5) Any price revised in terms of subregulation (4) shall not compromise the quality and the specifications of the original tender.
(6) The report referred to under subregulation (3)(c) shall—
(a) be submitted to an Accounting Officer by a procurement unit; and
(b) form part of records.
(7) For purposes of this regulation, “request for proposal with competitive negotiations” means a method for negotiating the pricing, terms and conditions relating to a particular transaction.
22. Competitive dialogue method
(1) A procuring entity shall request for an approval of an Accounting Officer to conduct procurement by means of a competitive dialogue method.
(2) A procuring entity shall use a competitive dialogue method, in confidence, to discuss with any shortlisted bidder at a dialogue stage of a procurement process, the means by which the needs of the procuring entity can be met, before calling for a final bid.
(3) A procuring entity shall in conducting procurement by means of a competitive dialogue method adhere to the following stages, a—
(a) shortlisting stage, where a suitable bidder is selected, who meets the minimum eligibility standards for compliance, technical, financial and economic criteria;
(b) dialogue with a bidder stage, which is a critical stage to the successful application of a competitive dialogue method, where the means of meeting the project objectives is discussed and negotiation is permitted; and
(c) final tender stage, where a tender is submitted to a procuring entity after clarification, specification and fine tuning is permitted, and such clarification, specification and fine tuning do not change the basic features of the tender or a contract’s key terms, do not risk distorting competition.
(1) A procuring entity may request for an approval of an Accounting Officer to conduct procurement by means of a reverse auction method.
(2) A procuring entity may, after the approval of an Accounting Officer in terms of subregulation (1) conduct procurement by means of a reverse auction where—
(a) it is feasible for the procuring entity to formulate a detailed description of the subject matter of a procurement;
(b) there is a competitive market of suppliers or contractors anticipated to be qualified to participate in the reverse auction method, to ensure effective competition; and
(c) the criteria to be used by the procuring entity in determining the submission is quantifiable, can be expressed in monetary terms.
(3) A procuring entity may use a reverse auction as a stage preceding an award of a tender in a procurement method, as may be applicable, where there is a tie in an offer.
(4) A procuring entity may conduct procurement by means of a reverse auction for an award of a contract in a framework contract with second stage competition.
(5) A reverse auction method shall apply to works, services and supplies which have a standard and comprehensive specification.
(6) A procuring entity shall ensure that a bidding under this regulation is completed within the period specified in an invitation to tender.
(7) A procuring entity shall submit a report on any procurement made under this regulation to a procurement unit for a professional opinion.
(8) A procurement unit shall, after considering the report referred to under subregulation (7), submit such report to an Accounting Officer for an award of a tender.
(9) In the event that a successful bidder declines an offer of an award made in terms of subregulation (8), the next lowest bidder shall be offered a tender, subject to a reserve price.
(1) A procuring entity may conduct procurement by means of an unsolicited bid method.
(2) Where a procuring entity conducts procurement by means of an unsolicited bid method, a bidder assumes the responsibility for project preparation cost such as a pre-feasibility and feasibility study, design specification and any other related assessment.
(3) A procuring entity shall, when considering to conduct procurement by means of an unsolicited bid method, address the following major factors—
(a) the ownership of any intellectual property rights to a project concept;
(b) the interests of both parties in a project concept;
(c) the cost effectiveness of a project concept by sole source negotiation of the detail of the project concept;
(d) a transparent and competitive procurement process involving an unsolicited bid method; and
(e) every unsolicited bid method is channelled into a transparent and competitive process where a bidder has a fair chance of winning a tender.
(4) A procuring entity may, in conducting procurement by means of an unsolicited bid method apply a swiss challenge system to allow for the submission of competing bids to a qualifying unsolicited proposal by another bidder, through a transparent procurement process.
(5) For purposes of subregulation (4), “swiss challenge system” means a system that recognises the investment made by a project proponent in preparing an unsolicited bid proposal to the requisite Outline Business Case standard, and the original proponent is given the right to counter-match the best offer and secure a contract.
25. Best and final offer method
(1) A procuring entity may conduct procurement by means of a best and final offer method where the procuring entity presumes that a proposal received from a bidder ought to have been a better offer than the actual offer.
(2) Notwithstanding the generality of subregulation (1), a procuring entity shall conduct procurement by means of a best and final offer method—
(a) in a large or complex procurement project;
(b) where the procuring entity determines that none of the proposals submitted to such procuring entity—
(i) does not address the procuring entity’s procurement needs, and
(ii) is in some respect unclear deficient; or
(c) where the procuring entity determines that the cost of all proposals is too high.
(3) A procuring entity shall use only one best and final offer method around.
26. Negotiated procedure method
(1) A procuring entity may conduct procurement by means of a negotiated procedure method in limited circumstances as may be determined without publishing an invitation to tender.
(2) A procuring entity shall, when conducting procurement by means of a negotiated procedure method, approach one or more suppliers seeking to negotiate the terms of a contract.
(3) A procuring entity may use a negotiated procedure method for works, services or supplies in any of the following cases where—
(a) there is no tender or request to participate submitted to the procuring entity in response to any open bidding, restricted procedure or competitive procedure, under the Act, provided that the initial terms of a contract are not substantially altered and a report is submitted to the Authority upon request for submission;
(b) a tender is considered to be not suitable or irrelevant to a contract, being incapable, without substantial changes, of meeting the procuring entity’s need and requirement as specified in the procurement documents;
(c) a request to participate is considered to be not suitable where a contractor concerned is, or may be, excluded under the grounds for exclusion or does not meet the selection criteria;
(d) the works, services or supplies can be supplied by a particular contractor for any of the following reasons—
(i) that the purpose of the procurement under this regulation is for the creation or acquisition of a unique work of art or artistic performance,
(ii) where there is no competition for technical reasons,
(iii) for the protection of exclusive rights, including intellectual property rights, or
(iv) where there is no alternative or substitute and the lack of competition is not as a result of an artificial narrowing down of a procurement; or
(e) where necessary, due an emergency brought by events unforeseen by the procuring entity and not attributable to such procuring entity, and the duration for any open bidding, restricted procedure or competitive procedure for negotiation cannot be complied with.
(4) A procuring entity may use a negotiated procedure method for a public supply contract—
(a) where a product involved is manufactured purely for the purpose of a research, experimentation, study or development, and a tender that is awarded in relation to the product shall not include quantity production in order to establish the commercial viability of the product or to recover the research and development cost;
(b) for any additional delivery by the original supplier, which is intended either as a partial replacement of supplies or installations, or as an extension of the existing supplies or installations, where change of a supplier would oblige the procuring entity to acquire supplies with different technical characteristics that may result in incompatibility or disproportionate technical difficulties in operation and maintenance; or
(c) for supplies quoted and purchased on a commodity market; or
(d) for the of services or supplies on reasonable terms, from either a supplier which is winding up its business activities, or a liquidator in an insolvency procedure.
(5) A procuring entity may use a negotiated procedure method for procurement, without the prior publication of an invitation to tender, for new works and services consisting of the repetition of similar works and services entrusted to the contractor the procuring entity awarded an original contract:
Provided that such works and services are in conformity with a basic project for which the original contract was awarded but shall not exceed the applicable contract variation threshold.
(6) A procuring entity shall, when using the negotiated procedure method, ensure that the basis project indicates the extent of possible additional works or services, and the terms and conditions under which the contract was awarded.
(7) A procuring entity shall, as soon as the first project is put up for a tender, disclose the procuring entity’s intention to use the negotiated procedure method, and consider the estimated total of any subsequent works or services.
(8) For purposes of this regulation, “negotiated procedure” means a procurement process that uses negotiation with a selected supplier or service provider.
27. Expression of interest method
(1) A procuring entity may conduct procurement by means of an expression of interest method for the pre-qualification of a bidder for—
(a) the development of a supplier database; and
(b) any complex or large contracts.
(2) A procuring entity shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, international publication, or professional or trade journal with international circulation, publish an invitation to tender under this regulation, which shall state—
(a) a brief outline of the assignment;
(b) a brief description of a statement of requirement;
(c) the required information to be submitted by an interested contractor; and
(d) the duration of the assignment.
(3) A procuring entity shall, from any of the contractors who have responded to an invitation to tender under subregulation (2), shortlist a number of the contractors and directly invite such contractors to submit proposals on the bid.
(4) An invitation referred to under subregulation (3) shall include a request for proposal and the terms of reference.
(1) A procuring entity may conduct procurement by means of a hackathon method which is used for—
(a) technology to achieve a given objective;
(b) the recruitment of top talent for the provision of services and works;
(c) expeditious solving of a problem; or
(d) the growth of a business.
(2) A procuring entity that uses a hackathon method in the conduct of the procuring entity’s procurement shall be such procuring entity that has—
(a) a paying customer or any other form of motivation to participate in a bid;
(b) a team or contractors that are willing to play a part in the hackathon method;
(c) a problem to solve;
(d) any agreed rules of engagement between the procuring entity and a contractor; and
(e) a platform for the hackathon method, whether electronic or in person.
(3) A procuring entity shall, in conducting procurement by means of a hackathon method use a procurement process as follows—
(a) comply with the registration requirements as part of the hackathon method; and
(b) apply technical evaluation as part of the hacking duration.
29. Community participation method
(1) A procuring entity may conduct procurement by means of a community participation method where the procuring entity may involve a beneficiary community to participate in the delivery of services if such procuring entity considers that the beneficiary community shall contribute to—
(a) the economy;
(b) value for money;
(c) the sustainability of the project; and
(d) the socio-economic objectives.
(2) A community participation method may involve two approaches—
(a) a direct participation of a beneficiary community; or
(b) an organised participation of a beneficiary community through the appointment of a community based service provider.
(3) Where a procuring entity intends to use a community participation method for procurement, the procuring entity shall ensure that a project—
(a) is aligned to such procuring entity’s mandate and annual strategic procurement plan;
(b) has positive socio-economic outcomes with a community as its main beneficiary;
(c) requires the involvement of a community in part or in whole for its success and its continued implementation;
(d) is included in the annual strategic procurement plan for such procuring entity; and
(e) proposal is prepared in line with such procuring entity’s annual strategic procurement plan, which shall set out the—
(i) key result areas and the specific roles of a beneficiary community; and
(ii) objectives, estimated budget and a beneficiary community.
(4) A procuring entity that uses a community participation method for the procurement of the delivery of services shall do so in accordance with the guidelines issued by the Authority.
(5) An Accounting Officer shall, for purposes of this regulation, appoint a project supervisor who may be the head of a user department, or a procurement agent or procurement service provider, where a procuring entity does not have capacity to supervise a project.
30. Emergency procurement method
(1) A procuring entity may, on request to, and upon the approval of, an Accounting Officer, conduct procurement by means of an emergency procurement method where—
(a) the circumstances to procure permit the procuring entity to use an emergency procurement method, regardless of the estimated value of a requirement for a tender; or
(b) the procuring entity could not have foreseen an emergency, which may not be as a result of the negligence of such procuring entity.
(2) Notwithstanding the generality of subregulation (1), a procuring entity may use an emergency procurement method where—
(a) the country is either threatened by or confronted with a disaster, catastrophe, war or an act of God;
(b) life or environment may be compromised;
(c) the condition or quality of goods, equipment, buildings or capital works may deteriorate unless an action is urgently and necessarily taken to maintain the goods, equipment, building or capital works in its actual value;
(d) a commodity has been identified as a supply risk in the risk log of a procuring entity and such supply risk is a national or global risk; or
(e) a procurement lead-time involved is such that it will jeopardise the ability of the procuring entity to achieve any major objective where there may be a national or global risk of supply if a normal procurement method is used.
(3) A procuring entity may motivate its request referred to under subregulation (1) and in doing so, the procuring entity shall include a comprehensive justification on the need to use an emergency procurement method.
(4) Where a procuring entity conducts procurement by means of an emergency procurement method, the procuring entity shall ensure competition by bidders to the maximum extent practical in an emergency circumstance.
(5) A procuring entity shall, in an emergency situation and where practical, consider the use of any other procurement method before the procuring entity decides on the use of an emergency procurement method.
(6) A procuring entity shall, notwithstanding that an emergency arises outside working hours or working day, conduct a procurement under this regulation and in writing request an Accounting Officer to approve such procurement, stating the reasons for the emergency and the justification for a departure from any procedure provided under these Regulations.
(7) Where an Accounting Officer approves an emergency procurement method, a procuring entity shall, where applicable, prepare a plan to indicate the steps to be taken to prevent a similar event, and inform the Authority.
(8) A procuring entity may, for purposes of this regulation and in exceptional cases or where practical, deviate from the use of a standardised bidding document issued by the Authority.
(9) A procuring entity shall prepare any supporting document for a procurement under this regulation, and submit the supporting document to an Accounting Officer for approval.
(10) An Accounting Officer shall keep and maintain a log for every procurement made under this regulation and submit the log to the Authority.
(11) A submission referred to under subregulation (1) shall be made quarterly in every financial year.
(12) An Accounting Officer shall ensure that in conducting procurement by means of an emergency procurement method, the risk of fraud, inflated prices, conflict of interest, unfairness corruption or any other matter associated with the risk that comes with the emergency procurement method, is reduced or managed appropriately in accordance with the relevant laws.
31. Procurement of highly sensitive works, services or supplies
(1) An Accounting Officer shall, where a procuring entity undertakes the procurement of highly sensitive works, services, supplies or any combination thereof, however classified, submit to the Authority, a restricted list of the category of restricted items referred to under section 54(3)(a) of the Act, which shall include—
(a) the justification for the restricted procurement of each category of the items on the restricted list;
(b) the description and quantity of each category of the items required;
(c) a budgetary provision; and
(d) the proposed procurement method to be used for each category of the items and the justification of such procurement method.
(2) A restricted list referred to under subregulation (1) shall—
(a) be in Form B set out in Schedule 1; and
(b) form part of the strategic capital acquisition management plan as a special category for special projects in line with the national defence strategy.
(3) A procuring entity shall, where the procuring entity undertakes the procurement of highly sensitive works, services, supplies or any combination thereof, however classified, covering items that are subject to a direct procurement method provided under regulation 20, record the direct procurement method in the strategic capital acquisition management plan as an urgent procurement, and contract any additional life-cycle activity, where necessary, according to the policy, process and procedure for the acquisition of armaments to ensure the integrity of the system and value for money.
(4) A procuring entity that undertakes the procurement of highly sensitive works, services, supplies or any combination thereof, however classified, which fails to submit a restricted list to the Authority in terms of subregulation (1) shall be—
(a) deemed to be conducting such procurement on the basis of an open list;
(b) subject to the requirements of procurement under the Act; and
(c) subject to an investigation relating to irregular expenditure.
(5) An Accounting Officer shall appoint an integrated project team which shall consist of a representative from a—
(a) user department who shall be the project officer; and
(b) procuring entity responsible for contracting.
(6) An Accounting Officer shall submit a report quarterly, detailing the procurement of highly sensitive works, services, supplies or any combination thereof, by a procuring entity, to the Authority.
(7) An Accounting Officer shall, where a procurement need arises, which was not included in the restricted list referred to in subregulation (1), submit a supplementary restricted list to the Authority.
(8) Any procurement made under this regulation shall be monitored by the Authority to ensure that the procurement is in accordance with these Regulations.
32. Procurement of medicines and related medical supplies
(1) A procuring entity shall, where the procuring entity procures medicines and the related medical supplies, ensure that the procurement of such medicines and related medical supplies is in compliance with these Regulations.
(2) An Accounting Officer shall establish an appropriate structure for the procurement quality assurance, logistics management, finance management, contract management, legal matters, operations or any other associated support structures for the provision of medicines and related medical supplies by a procuring entity.
(3) An Accounting Officer shall, when procuring medicines and related medical supplies—
(a) use the latest standardised guidelines, for the efficient and effective procurement of medicines and related medical supplies in order to improve availability;
(b) utilise pooled procurement regionally and internationally where available to reduce any costs associated with a procurement under this regulation; and
(c) utilise pooled procurement and any other sources through development partners and supranational organisations.
(4) Notwithstanding subregulation (3)(b) and (c), an Accounting Officer shall ensure that a procuring entity procures locally manufactured works, services and supplies in accordance with Part XI of the Act.
(5) An Accounting Officer shall—
(a) approve the variation of a contract relating to strength, pack size or artwork without going through a formal procurement process where there are similar alternative strength, pack size or artwork subject to consideration of a price;
(b) implement a seamless accounting system to finance healthcare supply chain in order to avoid severance of the supply chain activities and associated inefficiencies;
(c) place an order through commitment letters with a confirmed issuance of a Government purchase order for any confirmed quantity secured with a manufacturer;
(d) identify and select key suppliers on periodic basis for critical lifesaving and quality improvement of medicines and related medical supplies in consideration of locally manufactured works, services or supplies; and
(e) in utilising development partners, pooled procurement and supranational organisations referred to under subregulation (3)(c) and (d), request for approval from the Authority to, use any provided system, standard agreement, and derogate from using any standard document, which would ensure good procurement practice and sustainability.
PART V
Procedure and Processes of Procurement by Procuring Entities (regs 33-43)
(1) A procuring entity shall make a proposal for an annual or periodic procurement planning and integrate the proposed annual or periodic procurement planning with the applicable budget processes, based on any approved or indicative budget, as may be appropriate.
(2) A procuring entity shall revise or update a procurement plan, as may be necessary, after the approval of a budget for a financial year.
34. Contents of annual procurement plan
(1) An annual procurement plan for each financial year shall include—
(a) a detailed breakdown of the works, services or supplies required by a procuring entity and their priority, and an indication as to whether it will be necessary to carry out a prior study for a tender of such works, service or supplies;
(b) a schedule of the delivery of the works, services or supplies, and the implementation or the completion date for such works, services or supplies required by a procuring entity;
(c) an indication of the items that can be aggregated for procurement as a single package or for procurement through any applicable arrangement for common use items;
(d) an estimate of the cost of each package of works, services or supplies required by a procuring entity, and the details of the budget available and the sources of funding;
(e) information on the rules applicable to a procurement where the procurement is not subject to the provisions of the Act;
(f) an indication of the anticipated procurement method for each procurement requirement, including any need for pre-qualification, and the anticipated time for the completion of the procurement, taking into account the applicable approval requirements; and
(g) any other information as the Minister may determine, after the approval of the Minister.
(2) An annual procurement plan referred to in subregulation (1) shall be submitted by an Accounting Officer to the Authority in Form C set out in Schedule 1.
35. Aggregation of procurement requirements
(1) A procuring entity may aggregate a procurement requirement, as may be necessary, in order to achieve the economies of scale.
(2) A procuring entity shall, in deciding whether an aggregate is necessary, consider all the relevant factors, including the—
(a) items that are of a similar nature and are likely to attract the same bidders;
(b) items that will be ready for bidding at the same time, and when delivery, implementation or completion shall be required by the procuring entity;
(c) optimum size and type of contract to attract the most responsive competition, taking into account the market structure for the items required by the procuring entity;
(d) need to apply any reservation to promote the participation of a local supplier, local manufacturer or producer, or a target citizen;
(e) items that will be subject to the same bidding requirements and the terms of a contract;
(f) potential by a procurement to realise savings or transaction cost, or facilitate a contract management by the procuring entity;
(g) preferential and reservation scheme in order to promote economic empowerment and locally manufactured or produced works, service or supplies;
(h) capacity and strength of a bidder;
(i) development of a supplier, particularly a local manufacturer or producer, or a targeted citizen, in order to strengthen and enhance competition;
(j) different supply chain management and inventory management strategy in order to promote the business of a local manufacturer or producer, or a targeted citizen, and to manage business cost; or
(k) accessibility to an international manufacturer or preferred supplier, an international procurement agent or foundation, supranational organisation, a development partner or a pooled procurement, where works, services or supplies are not available in Botswana.
36. Division of procurement requirement into lots
(1) A procuring entity may, upon the approval of the Accounting Officer, divide a procurement requirement, which can be procured as a single contract, into several lots to be tendered together, where it is anticipated that an award of several separate contracts may result in the best overall value for the procuring entity.
(2) The Accounting Officer may approve a division of 1000 words a requirement into separate lots where the division is likely to increase the number of the responsive bids.
(3) A procuring entity shall not divide a procurement into lots—
(a) where an award of several separate contracts would create a challenge of compatibility or inter-changeability between items purchased as separate lots;
(b) where an award of several separate contracts would invalidate or otherwise restrict any supplier’s warranty or liability; or
(c) where an award of several separate contracts would increase the cost of servicing, maintenance or similar requirement.
37. Initiation of procurement process
(1) A procurement requirement shall be initiated by a user department using a procurement requisition in Form D set out in Schedule 1, which shall include—
(a) a statement of the procurement requirement;
(b) the estimated value of works, services or supplies; and
(c) the detail of the funds budgeted for the procurement requirement, including any funds from future budget for any multi-year contract or donor.
(2) A user department shall, in preparing a statement of a procurement requirement, seek technical advice as may be necessary.
(3) A user department shall, in estimating the value of works, services or supplies, ensure that the estimation is realistic and based on an up-to-date information relating to economic and market conditions.
38. Approval of requisition to procure
(1) An Accounting Officer shall approve a requisition to procure by a user Department before the initiation of a procurement process.
(2) The approval of a requisition referred to in subregulation (1) shall include confirmation of the—
(a) need for the items listed in the requisition and the authority to proceed with a procurement; and
(b) availability of funds for a procurement.
(3) A requisition approved in terms of this regulation shall be submitted by a user Department to a procurement unit to initiate a procurement process.
(4) A procurement unit shall ensure that adequate funds are budgeted for a procurement process prior to the initiation of the procurement process, taking into account all costs involved in such procurement process, including any funds required for the publication of any notice.
(5) The costs involved in a procurement process may, in addition to a total contract price, include the following—
(a) a contingency plan, including any anticipated contract variation, exchange rate fluctuation or allowance for price adjustment;
(b) the costs relating to the successful delivery of a procurement requirement for which a procuring entity is liable, including freight, insurance, customs clearance, inland delivery, import tax or duty, inspection, installation or any costs relating to a service or maintenance agreement;
(c) the costs relating to a facility, service or resources to be provided by a procuring entity, particularly costs on office space or communication facility for a procurement agent or procurement service provider;
(d) the cost of any linked contract, which is necessary for the successful implementation of the procurement process; and
(e) any other costs such as levies or value added tax, or costs deemed to be justifiable by a procuring entity.
(6) Where a procuring entity initiates a procurement process for a multi-year contract or a framework contract, the procuring entity shall ensure that funds for the—
(a) current financial year are budgeted for; and
(b) future financial year are included in a budget for a subsequent financial year.
(1) A procuring entity shall ensure that funds are available for procurement, and shall, in Form E set out in Schedule 1, confirm the availability of such funds before commencing a procurement process.
(2) Notwithstanding subregulation (1), a procuring entity may commence a procurement process for a scheduled or routine activity if the procuring entity is certain of the availability of funds for such activity.
40. Standardisation of procurement
(1) A procuring entity may submit a proposal for the standardisation of works, service or supplies to the Authority for approval.
(2) A proposal referred to in subregulation (1) shall include—
(a) the technical, economic and logistical justification for the standardisation of works, services or supplies;
(b) the justification for the choice of the proposed standardisation of works, services or supplies;
(c) a projection for future procurement of the object of the standardisation of works, services or supplies;
(d) any plan to ensure transparency and value for money in procurement of the standardised works, services or supplies; and
(e) any other information that may be relevant to the proposed standardisation of works, services or supplies.
(3) An approval of a standardisation of works, services or supplies in subregulation (1) shall be for such period as the Authority may determine, and after the period lapses, a procuring entity shall review the standardised works, services or supplies.
(4) Where a procuring entity decides to continue with a standardised works, services or supplies after a period referred to in subregulation (3), the procuring entity shall, in writing within 14 days, submit its proposal to continue with the standardised works, services or supplies to the Authority for approval, accompanied by—
(a) an updated technical, economic and logistical justification of the proposed continuation of such standardised works, services or supplies, indicating any change;
(b) an updated justification for the choice of such standardised works, services or supplies, including the advantage, if any, of the standardised works, services or supplies and any change since the application of such standardised works, services or supplies;
(c) the original projection for procurement, the actual volume and value of the procurement of such standardised works, services or supplies during the period of the validity of the standardised works, services or supplies, and future procurement of the object of such standardised works, services or supplies;
(d) any plan to ensure transparency and value for money in the procurement of such standardised works, services or supplies; and
(e) any other information that may be relevant to the proposed continuation of such standardised works, services or supplies.
(5) The Authority shall, after receipt and upon consideration of a proposal referred to under subregulations (1) and (4)—
(a) approve the proposal, and in writing, state the grounds for the approval of the proposal; or
(b) reject the proposal, and in writing, state the grounds for the rejection of the proposal.
41. Categorisation of works, services or supplies
(1) A procuring entity may categorise works, services or supplies of a similar or related nature where such categorisation is practicable and may not cause unreasonable delay in a procurement process.
(2) A procuring entity may, in categorising works, services or supplies, appoint a procurement agent or a procurement service provider, or request any other procuring entity, to perform the services involving such categorisation.
(3) A procuring entity may unbundle the categorisation of works, services or supplies in order to enhance the participation of a targeted citizen in accordance with the Economic Inclusion Act (Act No. 26 of 2021).
(4) A procuring entity shall debit a procurement requirement to different vote sub-heads which shall only be combined into one tender where all costs of a procurement can be easily identified and separately debited.
(5) A procuring entity shall not divide a procurement into separate tenders for the purpose of avoiding a domestic or an international competitive bidding or selection, except where unbundling is allowed to enable the participation of a citizen.
(6) A procuring entity shall develop a supply chain management strategy that shall deliver a long-term value for the procuring entity by ensuring that the acquisition and the delivery of works, services or supplies is effective, responsive and cost-effective, and by delivering innovative solutions.
(7) A categorisation of works, services or supplies shall—
(a) include a tailored acquisition process;
(b) incorporate technology and innovation, or a consideration to minimise waste, such improved packaging and production, and take-back schemes; and
(c) include a cost-effective delivery method with a solution that promotes best value for money.
(8) A procuring entity shall—
(a) analyse spend category and volume of works, services or supplies;
(b) engage in regular analysis of the needs of a user and of a supply market;
(c) create value to improve the total cost ownership and consider quality, innovation, the safety of supply and risk management;
(d) adopt a proactive stance in the development of a category strategy; and
(e) assign a responsibility and process for the development and implementation of a category strategy, including the responsibility to involve a stakeholder and to manage a contract.
(9) A procuring entity shall be responsible for defining the relevant strategy for the category of the procuring entity.
(1) A procurement entity shall, when considering a potential source for any procurement requirement, consider all relevant factors, including—
(a) the competitiveness of a domestic, regional or an international market for the works, services or supplies in order to ensure value for money;
(b) the likely interest of a domestic, regional or an international bidder, given the size and nature of a procurement requirement;
(c) whether an item should be purchased from a manufacturer, or from distributor or agent;
(d) any restriction relating to existing copyrights, intellectual property rights, patent or proprietary rights;
(e) whether there is a functionally equivalent works, services or supplies which would meet the needs of a procuring entity;
(f) any applicable law that restricts any potential source;
(g) the need for compatibility or inter-changeability with any existing works, services or supplies;
(h) the requirements for the service and maintenance of any item purchased and any restriction related to the conditions of warranty;
(i) any impact on conditions of warranty or the liability of a supplier, where an alternative supplier is used for additional work or continued work;
(j) any potential benefit, particularly the use of any experience acquired or any saving in the mobilisation of costs;
(k) any applicable international agreement or obligation; and
(l) the complexity of the supply chain and the availability of a commodity in the local market.
(2) Any recommendation to use a limited number of suppliers or a single source as the criterion for determining the choice of a procurement method shall include a—
(a) comprehensive analysis of the market for the required works, services or supplies;
(b) detail of the relevant factor referred to in subregulation (1);
(c) statement that no other source could be used to open a procurement requirement to a more competitive procurement method; and
(d) justification for restricting the number of potential sources.
43. Pre-qualification of bidders
(1) A procuring entity may use a pre-qualification process where—
(a) the works, services or supplies required by the procuring entity are highly complex, specialised or require a detailed design or methodology;
(b) an evaluation is detailed and the evaluation is of a large number of bids, which would require an excessive time and resources from the procuring entity;
(c) the quality and the performance is of primary importance for the supply, of works, services or supplies, or of equipment, or the supplier’s back up and maintenance service is critical; or
(d) a shortlist of capable bidders is required for bidding.
(2) An Accounting Officer shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish information relating to a pre-qualification, which shall include—
(a) the name and address of a procuring entity;
(b) the nature, quantity and location of works to be undertaken, the nature and location of services to be provided, or the nature, quantity and place of the delivery of the supplies;
(c) the completion of works, the timetable for the provision of services, or the desired or required time for the delivery of supplies;
(d) the criteria and procedure to be used for the evaluation of the qualification of a bidder;
(e) the price, currency and terms of payment for the pre-qualification document;
(f) the means of obtaining a pre-qualification document and the place from which the pre-qualification document may be obtained;
(g) the language in which a pre-qualification document shall be available;
(h) the place, manner and deadline for the submission of an application for pre-qualification;
(i) a minimum bidding period as may be applicable; and
(j) any other information as the Accounting Officer may consider necessary.
(3) An Accounting Officer shall approve a pre-qualification document before the pre-qualification document is issued to a bidder.
(4) Any invitation for a pre-qualification issued in terms of this regulation, which has not been approved by an Accounting Officer shall not be invalid.
(5) Where a procuring entity undertakes a pre-qualification, the qualification of a bidder by the procuring entity shall be based on compliance and technical requirements, including—
(a) the experience and past performance of the pre-qualification applicant;
(b) the pre-qualification applicant’s knowledge of the labour laws;
(c) the capability of the pre-qualification applicant with respect to personnel, equipment and construction or manufacturing facility;
(d) the financial position of the pre-qualification applicant;
(e) any commitment of the pre-qualification applicant; and
(f) the compliance by the pre-qualification applicant with any legal requirement.
(6) A procuring entity shall, after receipt of a pre-qualification application, evaluate the pre-qualification application in accordance with these Regulations.
PART VI
Standardised Bidding Packages and Bidding Processes (regs 44-48)
(1) A procuring entity shall state its procurement requirement for works, services or supplies in—
(a) writing, in the standardised bidding package and contract issued by the Authority in terms of section 56(1) of the Act; and
(b) accordance with the type, value and relative complexity of the procurement requirement.
(2) A bidding document issued by a procuring entity in terms of section 56(4) of the Act shall include—
(a) an invitation to tender and an instruction on the—
(i) preparation and submission of a bid,
(ii) date, time and address for receipt of a bid,
(iii) place and time of a bid opening,
(iv) non-refundable cost of a bid document,
(v) pre-bid meeting or site visit where necessary,
(vi) reservation scheme that may be applicable,
(vii) requirements for registration,
(viii) contact person, and
(ix) any other information that may be necessary;
(b) a returnable form;
(c) the general conditions of a contract or a statement of the general conditions that shall apply;
(d) the special conditions of a contract;
(e) an integrity agreement in Form F Set out in Schedule 1;
(f) a statement of a procurement requirement or scope of work, or terms of reference or bill of quantities;
(g) a schedule of a procurement requirement and a price schedule;
(h) a statement of the qualification documentation to be provided by a bidder;
(i) the contract form, a statement of the contract or an order document that shall apply;
(j) the arrangement for securities, guarantees or any other document of security, where required; and
(k) an instruction to a bidder to indicate the kind of information the bidder would not want to be disclosed by the procuring entity to a third party.
(3) The Minister shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish a schedule of the cost of a bidding document that shall be sold to a prospective bidder.
45. Selection of standardised bidding package
(1) A user Department shall select a type of a standardised bidding package and contract as part of a procurement planning process, taking into account the—
(a) nature, value and complexity of a procurement requirement;
(b) need to offer an equitable contract to every bidder to ensure effective competition;
(c) need to maximise value for money and minimise risk for a procuring entity;
(d) likelihood of any delay or unforeseen circumstances requiring contract variation;
(e) need for effective contract management and cost control; and
(f) resources available for the monitoring of a contract.
(2) A procurement oversight unit shall recommend the use of an applicable type of a standardised bidding package and contract from among the types of the standardised bidding packages issued by the Authority.
(1) A tender document shall state the period for which a bid shall remain valid.
(2) The validity period of a bid shall be calculated from the closing date of the submission of the bid and shall remain in force until the close of a business on the last day of the validity period of such bid.
(3) A procuring entity shall, when determining the duration of the validity period of a bid, allow sufficient time to enable the procuring entity to—
(a) undertake an evaluation, post-qualification and negotiation;
(b) conduct adjudication and make an award of a tender;
(c) allow a bidder to challenge a decision by such procuring entity to award a tender, before a contract is concluded; and
(d) prepare a letter of acceptance or a contract, and obtain the necessary approval before the issuance of the letter of acceptance or contract, within the validity period of a bid.
(4) A procuring entity shall, where necessary, request for an approval of an Accounting Officer for the procuring entity to request, in writing, a bidder to extend the validity period referred to under subregulation (2) for a minimum period to complete the processes referred to under subregulation (3), before the expiry of the validity period of a bid.
(5) A bidder may extend the validity period of a bid before a decision by a procuring entity to award a tender is made.
(6) A procuring entity shall, where a bidder extends the validity period of a bid, not permit the bidder to change the price or any other detail of the bid.
(7) An Accounting Officer shall, when considering a request from a procuring entity in terms of subregulation (4), take into account and weigh several factors including, but not limited to—
(a) the amount of time that has passed following the closure of a tender;
(b) the nature of the procurement;
(c) public interest in the procurement;
(d) the stage of the procurement;
(e) whether a cancellation of a tender may result in the prejudice of a bidder; or
(f) whether a bidder stands to suffer any prejudice due to an extension of the validity period of a bid.
(8) Where a bidder refuses to extend the validity period of, or revalidate, a bid, upon the request of a procuring entity, the bidder’s bid shall be disqualified from further evaluation without forfeiting the security of such bid, where applicable.
47. Statement of procurement requirement
(1) A procuring entity shall define a statement of a procurement by specification of the procurement requirement, and such requirement specification shall contain a complete, precise and description of such procurement requirement, and shall include, where appropriate —-
(a) a specification issued without a reference to a particular trademark, brand name, patent, design, type, specific origin, producer, manufacturer, catalogue or numbered item;
(b) in the case where there is insufficient precise or intelligible way of characterising a procurement requirement except by the use of a reference under paragraph (a), a specification issued with such reference which shall include the words “or equivalent” and serve as a benchmark during an evaluation process;
(c) in the case where a standardisation of works, services or supplies is adopted by the procuring entity, a specification issued with a reference under paragraph (a);
(d) a dimension, symbol, terminology, language, packaging, marking and labelling of the supplies required in accordance with industry standards issued by the Authority under the Act;
(e) the national or international standard, where available, or the industry standards referred to under paragraph (d); and
(f) specific description of a procurement requirement based on the needs of an existing infrastructure.
(2) A bidding document shall state, where applicable, the mandatory certification issued by the relevant authority.
48. Pre-bid meetings and site visits
(1) A procuring entity may hold a pre-bid meeting or conduct a site visit in order to allow a potential bidder to either seek clarification or have access to a project site.
(2) A procuring entity shall include in a bidding document, an arrangement for a pre-bid meeting or a site visit, and such meeting or visit may be virtual, digital, electronic or physical interaction, as may be applicable.
(3) A procuring entity shall give a potential bidder reasonable notice of any pre-bid meeting or site visit, within a specified validity period of a bid, and where necessary, the procuring entity shall extend the period of such notice.
(4) A procuring entity shall hold a pre-bid meeting or a site visit for such time as may be reasonable for a bidder, in order to enable the bidder to consider any additional information that may be necessary in the preparation of a bid.
(5) A bidder may, in a pre-bid meeting or site visit, request a procuring entity for an additional time, and the procuring entity may consider such request and communicate the decision to all participating bidders.
(6) A procuring entity shall cause proper minutes of a pre-bid meeting or site visit to be taken and recorded, and a copy of such minutes shall be provided to a bidder who has been issued with a bidding document.
(7) A procuring entity shall manage and be in charge of a pre-bid meeting or site visit.
PART VII
Procedure for Tender Submission, Tender Opening and Evaluation, De-Briefing of Bidder and Cancellation of Procurement Process (regs 49-66)
49. Methods of submission of bids
(1) A bidding document shall contain an instruction on the method of the submission of a bid, which shall be—
(a) a single envelope or package submission, in which a tender document containing the financial and technical officer of a bidder is submitted together in one sealed envelope or packaging;
(b) a dual envelope or package submission, in which the technical offer from the bidder is placed in one sealed envelope or package marked “technical offer”, and the financial offer from a bidder is placed into a second sealed envelope or package marked “financial offer”; or
(c) any other submission as may be determined by the Authority.
(2) A bidding document shall state that a bid shall be firmly bound, submitted in an envelope or package, securely sealed in such manner that does not allow for the envelope or package to be easily opened and resealed.
(3) A bidder may, subject to subregulation (2), use a preferred method of sealing of an envelope or a package.
(4) A procuring entity shall, during a bid opening, reject any envelope or package that is not sealed in such manner as provided under subregulation (2).
(5) A bidding document shall contain an instruction on the detail of the labelling and a reference to be written out on each envelop or package which shall include—
(a) a procurement reference number and description;
(b) the name, telephone number and postal address of a bidder;
(c) the technical or financial information of a bidder; and
(d) an original tender document clearly marked “ORIGINAL”, and two copies of the original tender document each dearly marked “COPY”, of the bid submission.
(6) A contractor who responds to a tender shall submit one original copy of a bid document to be used by an Evaluation Committee, and two duplicate copies of the bid document, one copy to be used by a procurement oversight unit and one copy to be photocopied for use by an evaluator.
50. Receipt of bid and bid opening
(1) A bidding document shall contain an instruction for the time, date and place for the submission of a bid.
(2) A procuring entity shall ensure that the closing date to bid falls on a working day, and where a closing date to bid falls on a Saturday, Sunday or a public holiday, the procuring entity shall allow a bid document to be submitted at a time originally stipulated in the Tender Notice.
(3) In addition to any other procurement requirement in a bid document, a procuring entity shall immediately return a bid document submitted after the closing date to bid to the bidder, unopened and marked “late bid document”, together with a date and time on which the procuring entity received the bid document.
(4) A procuring entity shall extend the closing date to bid where the procuring entity provides sufficient evidence that there is need for such extension to an Accounting Officer, or as the case may be, where there is sufficient time to publish an amendment notice before the closing time to bid.
(5) The procedure for an opening of a bid shall be—
(a) a public opening of a bid which may be witnessed by a representative of a bidder, either virtually or physically, or through a live streaming as may be determined by a procuring entity; or
(b) a private opening of a bid which shall be witnessed by at least three members of staff of a procuring entity, including one staff member of a procurement oversight unit.
(6) Notwithstanding subregulation (5), a procuring entity shall allow any interested representative of a bidder and the general public to attend every opening of a bid.
(7) A procuring entity shall—
(a) keep and maintain a record of the—
(i) opening of a bid in single envelope or package, in Form G set out in Schedule 1,
(ii) opening of a bid for technical offer in dual envelope or package, in Form H set out in Schedule 1, and
(iii) opening of a bid for financial offer in dual envelope or package, in Form I set out in Schedule 1; and
(b) in the case of a private opening of a bid, avail to, a representative of a bidder a copy of the record referred to in paragraph (a).
(1) A bidding document shall include an instruction that a bidder may withdraw, modify or replace a bid by notice to an Accounting Officer at any time before the closing date to bid, for the approval of the Accounting Officer.
(2) A withdrawal, modification or replacement of a bid referred to in subregulation (1) shall be opened, read and recorded at the opening of the bid in accordance with the guidelines issued by the Authority.
(3) A bidder who wishes to withdraw, modify or replace a bid shall do so in writing, and submit in the same manner as the submission of a bid, in an envelope or package marked “WITHDRAWAL”, “MODIFICATION” or “REPLACEMENT”.
(4) The re-submission of a bid shall be marked “REPLACEMENT BID” or “SUPPLEMENTARY BID” on the outer envelope or package.
(1) An Evaluation Committee shall—
(a) evaluate a bid received in accordance with a tender document;
(b) evaluate a bid received to determine compliance with bidding document, technical responsiveness and undertake an analysis of value for money of the bid; and
(c) during an evaluation of a bid, not consider any factor that is not expressly provided for or national standard specification in a tender document unless there are extenuating circumstances to use an industry standard.
(2) An Evaluation Committee shall, when analysing value for money, where applicable, compare bid prices previously obtained through a competitive procedure in respect of a similar procurement, or a breakdown analysis of any current component costs for a base item, freight and insurance elements, taking into account the circumstances and the value of the procurement.
(3) An Evaluation Committee shall, during the evaluation of a bid, carry out a preliminary examination of the bid to determine whether—
(a) a bid has met all the requirements for tender compliance and the bidding document has been properly signed;
(b) where a bidder has failed to submit, or has submitted incomplete administrative documents or information as may be guided by the Authority, the Evaluation Committee shall request the bidder to submit such documents or information within five days; and
(c) the required securities have been provided.
(4) An Evaluation Committee shall assess a bid to determine any substantial response to a procurement requirement of a tender document.
(5) A bid shall be considered to be substantially responsive if it conforms to all the terms, conditions and specifications of a tender document without any material deviation.
(6) A decision of an Evaluation Committee shall be made through an agreement by all members or the majority members of the Evaluation Committee.
(7) Where a member of an Evaluation Committee does not agree with a decision of the majority members of the Evaluation Committee, such Evaluation Committee shall ensure that an evaluation report indicates the disagreement.
(8) An Evaluation Committee shall keep and maintain an individual score sheet or evaluation sheet as a record of an evaluation process, and shall submit the individual score sheet or evaluation sheet with a consolidated report to a procurement unit.
(9) An evaluation report shall be signed by all members of an Evaluation Committee in attendance.
(10) An evaluation report shall—
(a) set out the reasons upon which the consideration of a preferred bidder is based; and
(b) together with the original bidding document, be submitted to a procurement unit by an Evaluation Committee for quality examination and if satisfied, the procurement unit shall forward the evaluation report and the bidding document to a procurement oversight unit for pre-adjudication.
(11) An Evaluation Committee may conduct an electronic evaluation in accordance with the National Electronic Procurement Regulations.
(12) An Evaluation Committee may, in determining a preferred bidder, where applicable and in accordance with a bidding document consider the following, the—
(a) reasonableness of the bid price, subject to any existing reservation and preferential scheme applied;
(b) total life cost where applicable;
(c) time for the delivery of the supplies;
(d) completion of works or the provision of services;
(e) functional characteristics of the works or supplies;
(f) terms of payment and of guarantees in respect of works, services or supplies; and
(g) any other relevant factors.
(13) Where a price of a bid is expressed in two or more currencies, an Evaluation Committee shall convert the price of the bid to the Botswana Pula currency, for purposes of evaluating and comparing all bids before the Evaluation Committee.
(14) An Evaluation Committee shall, when converting a currency in terms of subregulation (16) use the exchange rates provided by the Bank of Botswana established under the Bank of Botswana Act (Cap. 55:01), as may be applicable to any similar transaction at the time of the closing of a tender.
(15) A material deviation to commercial terms and conditions by a bid shall justify a rejection of the bid by an Evaluation Committee, and such material deviation shall include—
(a) the failure to submit a completed form of offer and acceptance, and price schedules or bill of quantities, by an authorised person;
(b) the failure by a bidder to comply with the requirements for eligibility;
(c) the failure by a bidder to submit a security for a tender as specified in a tender document;
(d) the inability by a bidder to meet the critical delivery schedule or work schedule as specified in a tender document, where such schedule is a crucial condition which the bidder should comply with;
(e) the failure by a bidder to comply with the minimum experience criteria as specified in a tender document;
(f) a condition in a tender which limits the responsibility of a bidder to accept an award of the tender;
(g) the inability of a bidder to accept a price adjustment formulae of a tender document;
(h) a refusal by a bidder to accept a correction of an arithmetical error made pursuant to a tender document;
(i) a bidder who demands a price adjustment where a fixed price of a tender is invited;
(j) a bidder who subcontracts in a substantially different amount or manner than that permitted by a procuring entity; or
(k) any other relevant factors.
(16) An Evaluation Committee shall examine every bid for substantial response to a technical requirement of a bidding document, and where a bid does not conform to the technical requirement the Evaluation Committee shall make a recommendation to reject the bid for—
(a) failure by a bidder to bid for the required scope of work as instructed in the bidding document;
(b) failure by a bidder to meet technical requirement, particularly where the bidder offers a different type of equipment or material from the specified equipment or material, plant capacity of the bidder if well below the specified minimum, or the equipment of the bidder is unable to perform any basic function for which it is intended; or
(c) any other reason related to technical requirements.
(17) An employee of a procuring entity who took part in the preparation of a bidding document may participate in an evaluation of a bid where the employee’s expertise is required, and at the first meeting of an Evaluation Committee, an Accounting Officer shall ensure that all members of the Evaluation Committee are available for the duration of the evaluation according a work plan of such Evaluation Committee.
53. Clarification of bids during evaluation process
(1) An Evaluation Committee may, in writing, request a bidder for clarification of a bid received by a procuring entity from the bidder who shall, provide a written response to the Evaluation Committee.
(2) Any amendment to the substance of a bid, including the amendment of the price of a bid, shall not be sought, offered or permitted after the clarification referred to in subregulation (1).
(3) Any engagement between an Evaluation Committee and a bidder shall be in writing and the Evaluation Committee shall not entertain any informal communication, meeting or any other contact with the bidder.
(4) An Evaluation Committee shall handle every request for clarification of a bid through an official communication channel within a procuring entity, and the Evaluation Committee shall not allow any direct dealing between such Evaluation Committee and a bidder.
54. Evaluation of single envelope or package bid
(1) An Evaluation Committee shall evaluate a bid according to the compliance, technical and financial requirements stated in a tender document.
(2) A technical bid and a financial bid shall be submitted in a single envelope or package.
(3) A bidder who is successful in the compliance evaluation stage shall proceed to the technical evaluation stage, and a bidder who is successful at the technical evaluation stage shall proceed to the financial evaluation stage.
(4) A financial evaluation stage shall take into consideration any reservation or preference scheme.
(5) An Evaluation Committee shall prepare an evaluation report which encompasses the three stages referred to under subregulation (3) and submit the evaluation report to a procurement unit.
55. Evaluation of dual envelope or package bid
(1) A bidder shall submit to a procuring entity, a technical bid and a financial bid in separate envelopes or packages.
(2) An Evaluation Committee shall examine a bid for compliance and responsiveness.
(3) A bidder who is successful in a compliance evaluation stage shall proceed to a technical evaluation stage.
(4) An Evaluation Committee shall prepare a technical evaluation report and submit the technical evaluation report to a procurement unit.
(5) An Accounting Officer shall, after the approval of a technical evaluation report, authorise the opening of a financial bid.
(6) After the approval referred to under subregulation (5), a procuring entity shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish the outcome of a technical adjudication within three days of the outcome.
(7) An Accounting Officer shall sign and submit a letter to a successful bidder and a bidder who is has not been successful indicating the outcome of a tender and the reasons of the outcome.
(8) An Evaluation Committee shall evaluate a financial bid by strictly adhering to the financial evaluation criteria set out in a tender document.
(9) A financial evaluation stage shall take into consideration any reservation or preference scheme.
(10) An Evaluation Committee shall prepare a financial report and submit the financial report to a procurement unit.
(11) A procuring entity shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish the outcome of a tender adjudication within three days of the outcome.
(12) A procuring entity shall, after the publication of an award decision referred to under subregulation (11), allow a cooling-off period in accordance with section 104 of the Act.
(13) An Accounting Officer shall sign and submit a letter to a successful bidder and a bidder who has not been successful indicating the outcome of a tender.
(14) A procuring entity shall, where a bidder requests for de-brief, provide the bidder with de-brief in accordance with these Regulations.
(15) An Accounting Officer shall, where a contractor has not lodged a complaint during a cooling-off period, proceed to award the tender.
(16) An Accounting Officer shall, where a contractor has lodged a complaint during a cooling-off period, resolve the complaint within 14 days of the receipt of such complaint, before he or she proceeds with a procurement process in accordance with these Regulations.
(17) A procuring entity shall—
(a) upon receipt of a letter of acceptance from a bidder, place a contract with a successful bidder; and
(b) immediately return an unopened financial submission by a bidder whose bid failed to proceed to the financial evaluation, to the bidder.
(1) Except as otherwise provided in these Regulations, an amendment to a bid, including an amendment of a price of a bid, shall not be permitted after the closing date of the bid.
(2) Notwithstanding subregulation (1), an Evaluation Committee may correct an arithmetical error in a bid document where—
(a) there is a discrepancy between a unit price and the total price that is obtained by multiplying the unit price and the quantity, and such unit price shall prevail, and the total price shall be corrected accordingly;
(b) there is a discrepancy between an amount in words and an amount in figures, and the amount in words shall prevail; or
(c) applicable, a reservation or preference scheme is to be applied to a corrected price of a bid.
(3) Notwithstanding subregulation (1), a procuring entity may correct any minor error or oversight in a bid that is capable of being corrected without changing the substance of the bid.
(4) The procedure for the correction of an arithmetical error in a bid referred to under subregulation (2) shall be provided in a bidding document.
(5) Any arithmetic correction made to a bid shall, where necessary, be quantified, noted and taken into account in an evaluation of the bid.
(6) An Evaluation Committee shall, immediately after correcting a bid in terms of subregulation (2), inform a bidder of such correction, and where the bidder does not accept the correction, the Evaluation Committee shall disqualify the bid.
57. Ad hoc de-briefing committee
(1) An Accounting Officer shall appoint an ad hoc de-briefing committee for each specific procurement.
(2) An ad hoc de-briefing committee shall consist of a minimum number of three members who shall include—
(a) a member from an Evaluation Committee;
(b) a representative from a procurement oversight unit;
(c) a representative from a user Department; or
(d) an additional member, who may be a representative from a procurement unit.
58. Functions of ad hoc de-briefing committee
(1) An ad hoc de-briefing committee shall conduct a de-brief for a specific procurement of a procuring entity.
(2) After a procuring entity has informed a bidder of the outcome of a bid, the ad hoc de-briefing committee shall—
(a) meet with such bidder for the de-briefing; and
(b) at the meeting referred to in paragraph (a), inform such bidder that—
(i) only the bidder’s bid will be discussed,
(ii) such meeting is not a forum to debate the merits of a decision to award a tender,
(iii) such meeting shall not be used to raise any complaint, and
(iv) the bidder may lodge any complaint, in writing, with the Accounting Officer in accordance with these Regulations.
(3) An ad hod de-briefing committee shall take and record minutes of any meeting of the ad hoc de-briefing committee, which shall be signed by the attendants of the meeting, and be kept as part of a procurement record.
(4) The minutes of a meeting of an ad hoc de-briefing committee shall be availed to a bidder upon the bidder’s request.
59. Choice of method of evaluation
(1) An evaluation of a bid shall be conducted in accordance with any procedure relating to the evaluation of a bid provided under these Regulations and relevant to a particular procurement.
(2) A choice of an evaluation method under these Regulations shall be relevant to a particular procurement project and shall take into account the—
(a) complexity of a procurement project; and
(b) nature of procurement of works, services or supplies.
(3) A choice of an evaluation method shall be conducted in accordance with such procedure relating to a particular evaluation method.
(4) Where a procuring entity wishes to use an evaluation method other than the one provided under these Regulations, the procuring entity shall first obtain an approval of the Authority to use such method.
60. Evaluation by quality and cost based selection
(1) An Evaluation Committee shall conduct a quality and cost based selection evaluation method by—
(a) taking into account the quality and the cost of a bid in a process under which a technical bid is evaluated without access to a financial bid; and
(b) stating, in an invitation to tender, the relative weight to be given to the quality and the cost component of the evaluation, which shall depend on the nature of an assignment.
(2) A bid which is to be evaluated by a quality and cost based selection evaluation method shall be submitted using the dual envelope or package submission method.
(3) The procedure for conducting a quality and cost based selection evaluation of a technical bid shall be as follows—
(a) after the opening of a bid, the evaluation shall be conducted through—
(i) a preliminary examination to determine whether a bid is qualified and responsive to the terms of a bidding document, and
(ii) the elimination of a bid from further evaluation, which has been determined to be non-responsive and not qualified;
(b) by means of—
(i) evaluating a bid against a technical evaluation criteria,
(ii) marking, on a scale of 1 to 100, each criterion, and
(iii) weighing the mark attained by a technical bid and recording such mark as a technical score;
(c) a tender document shall divide the criteria into sub-criteria to assist in the assessment of a technical bid;
(d) a bid shall be compared to the minimum qualifying technical mark and a bid which does not reach the minimum shall be eliminated from further evaluation;
(e) to state, in a bidding document, the technical evaluation criteria, the weights and the minimum qualifying mark;
(f) an Evaluation Committee shall prepare a technical evaluation report of a technical bid received and the report shall—
(i) substantiate the results of an evaluation,
(ii) describe the strength and weakness of a bid,
(iii) indicate which bid is recommended to proceed to the cost evaluation, and
(iv) be approved by an Accounting Officer prior to the cost evaluation;
(g) a bidder who has secured the minimum qualifying mark shall be notified and be advised of the date and time set for the opening of a financial bid, in terms of the following—
(i) the opening of the financial bid shall not be sooner than five days following the notice date,
(ii) a financial bid shall be opened in public, and
(iii) the name of the bidder, the technical score and the price of the bid shall be read out at the opening of the financial bid;
(h) a cost evaluation of a bid shall be conducted by—
(i) reviewing a financial bid to correct any arithmetic error,
(ii) where applicable, the conversion of a bid to a single currency as stated in an invitation to tender,
(iii) evaluating a financial bid,
(iv) assessing the reasonableness and completeness of a price, and
(v) applying preferential treatment where applicable;
(i) a bid shall be rated by giving a financial score of—
(i) 100 to the bid with the lowest cost, and
(ii) an inversely score, proportional to the lowest bid cost, to other bids;
(j) a directly proportional cost or other methodology may be used, as an alternative, in allocating a mark for the cost:
Provided that such methodology is fully described in the invitation to tender;
(k) the total score shall be obtained by—
(i) weighing the technical score and cost score, and
(ii) adding the technical score and cost score together to obtain a combined score;
(l) the weight for the cost shall be between 10 and 20 points, and shall not be greater than 30 points out of a total of 100;
(m) the weight for the cost shall be chosen by considering the—
(i) complexity of the assignment, and
(ii) relative importance of the technical aspect of a bid;
(n) the method proposed for the weighting of cost and technical score shall be stated clearly in an invitation to tender;
(o) a bidder obtaining the highest total score shall be recommended for an award of a contract; and
(p) an Evaluation Committee shall prepare a financial evaluation report of a financial bid evaluated and indicate which bidder is recommended for an award of a tender.
61. Evaluation by quality based selection
(1) A quality based selection evaluation method shall be a method used for the evaluation of a technical bid conducted against a set criteria on a merit point system to determine the best technical bid without access to a financial bid and shall include an evaluation of the—
(a) quality of the bid which shall be the primary factor to be considered; and
(b) cost of the bid which shall apply only to the best technical bid.
(2) The procedure for quality based selection evaluation of a technical bid shall be conducted in the following manner—
(a) after the opening of a bid, an Evaluation Committee shall conduct a preliminary examination to determine—
(i) whether a bidder has qualified on the basis of having passed a selection for the bid, and
(ii) the responsiveness of a bid to the terms of bidding document;
(b) a bid that fails to qualify or that is found to be non-responsive to the terms of a bidding document shall be eliminated from further evaluation;
(c) a technical evaluation of a bid shall be conducted—
(i) to evaluate each technical bid against the technical evaluation criteria, and
(ii) by comparing a bid to the minimum qualifying technical mark and a bid which does not reach the minimum to be eliminated from further evaluation;
(d) an Evaluation Committee shall prepare a technical evaluation report of a technical bid received, which shall—
(i) substantiate the result of an evaluation,
(ii) describe the strength and weakness of the bid,
(iii) indicate which bid is recommended to proceed to the cost evaluation, and
(iv) approved by an Accounting Officer prior to a cost evaluation;
(e) a cost evaluation of a bid shall be conducted for opening a financial bid of a bidder who submitted the best evaluated technical bid, where a technical bid and a financial bid were submitted in a dual envelope or package submission method;
(f) a financial bid shall be negotiated by a procuring entity in accordance with the provisions of these Regulations; and
(g) an Evaluation Committee shall prepare a financial report and indicate which bidder is recommended for an award of a tender.
(3) A tender shall be awarded to a bidder with the highest technical score and a reasonable price.
(4) For purposes of this regulation, “quality based selection evaluation” means an evaluation method that uses quality as the primary factor in a process under which a technical bid is evaluated without accessing a financial bid, and a financial bid shall be conducted only for the best technical bid.
62. Evaluation by fixed budget selection
(1) A procuring entity shall, when using a fixed budget selection evaluation method, indicate its available budget, and the evaluation shall be conducted in the following manner, a bidder—
(a) shall be required to provide, within a stated budget, the best possible technical bid and financial bid, in separate envelopes or packages; and
(b) with the evaluated technical bid of the highest quality, which is within a stated budget, shall be recommended to be awarded a contract.
(2) A schedule of requirements or terms of reference which shall be prepared by a procuring entity shall contain the necessary detail to portray the sufficiency of the budget for the performance, by a bidder, of the expected task as shall be contained in a contract.
(3) The procedure for a fixed budget selection evaluation of a technical bid shall be conducted in the following manner—
(a) after the opening of a technical bid, an Evaluation Committee shall conduct a preliminary examination to determine—
(i) whether a bidder has qualified on the basis of having passed a selection for the bid, and
(ii) the responsiveness of a bid to the terms of bidding document;
(b) a bid that fails to qualify or that is found to be non-responsive to the terms of a tender document shall be eliminated from further evaluation;
(c) an Evaluation Committee shall prepare a technical evaluation report of a technical bid received, which shall—
(i) substantiate the result of an evaluation,
(ii) describe the strength and weakness of the bid,
(iii) indicate which bid is recommended to proceed to the cost evaluation, and
(iv) approved by an Accounting Officer prior to the commencement of a cost evaluation;
(d) a procuring entity shall advise a bidder that has passed the technical stage of evaluation of the date and time set for the opening of a financial bid;
(e) the opening of a financial bid shall not be sooner than five days following the notice date;
(f) a financial bid shall be opened in public and at the opening of the bid, a procuring entity shall read out the—
(i) name of a bidder,
(ii) technical score, and
(iii) price of the bid;
(g) an Evaluation Committee shall conduct a cost evaluation and shall eliminate a bid that exceeds the budget;
(h) subject to any negotiation that may be held between a procuring entity and a bidder, the bidder who submits the highest ranked technical bid, amongst submitted bids that are within the budget, shall be recommended for an award of a tender; and
(i) any negotiation shall be made in accordance with the provisions of these Regulations.
(4) For purposes of this regulation “fixed budget selection evaluation” means an evaluation method that recommends a bidder with the best technical bid which is within a given budget.
63. Evaluation by least cost selection works and supplies
(1) A procuring entity shall use the least cost selection works and supplies method to identify the lowest price of a bid which meets a technical and commercial requirement of a procuring entity.
(2) Unless otherwise expressly stated in a tender document, a bid evaluated in terms of this regulation shall require the use of a single envelope or package submission method.
(3) An Evaluation Committee shall make a recommendation for an award of a tender to a bid that is—
(a) qualified;
(b) technically compliant;
(c) responsive to the terms of a bidding document; and
(d) has the lowest price.
(4) The procedure for the least cost selection works and supplies evaluation of a bid shall be conducted in the following manner—
(a) an Evaluation Committee shall carry out a preliminary examination of a bid to determine—
(i) whether a bidder has qualified on the basis of having passed the eligibility criteria for the bid, and
(ii) the responsiveness of the bid to the requirements of a tender document;
(b) an Evaluation Committee shall eliminate a bid that fails to qualify or that is found to be non-responsive to the requirements of a tender document from further evaluation;
(c) an Evaluation Committee shall conduct a technical evaluation to determine any technical compliance with a specification or scope of works in a tender document, only for a bid that, in terms of a preliminary examination, has qualified and has been responsive;
(d) an Evaluation Committee shall eliminate a bid that is not in compliance with a technical requirement from further evaluation;
(e) an Evaluation Committee shall carry out a cost evaluation on a bid that is compliant with a technical requirement to—
(i) correct an arithmetical error,
(ii) convert a price of a bid to Botswana Pula currency, where applicable,
(iii) assess whether there is any omission of, or deviation from, the technical requirement,
(iv) assess whether a price of a bid is reasonable, and
(v) apply preferential treatment where applicable; and
(f) an Evaluation Committee shall prepare a detailed evaluation report of a bid received, which shall include—
(i) the result of an evaluation,
(ii) the reason for the rejection of any bid, and
(iii) a recommendation for an award of a tender.
(5) A tender shall be awarded to a technically compliant bidder with the lowest reasonable price.
64. Evaluation by least cost selection services
(1) An Evaluation Committee shall use the least cost selection services method to identify the lowest priced bid which meets any technical and commercial service requirement of a procuring entity.
(2) The least cost selection services method shall require the use of a single envelope or package.
(3) The procedure for the least cost selection services evaluation of a technical bid shall be conducted as follows—
(a) an Evaluation Committee shall conduct a preliminary examination to determine—
(i) whether a bidder has qualified on the basis of having passed the selection for the bid, and
(ii) the responsiveness of the bid to the requirements of a bidding document;
(b) an Evaluation Committee shall eliminate a bid that fails to qualify or that is found to be non-responsive to the requirements of a bidding document from further evaluation;
(c) an Evaluation Committee shall conduct a technical evaluation by evaluating a technical bid against the technical evaluation criteria;
(d) an Evaluation Committee shall eliminate a bidder who does not secure the minimum qualifying score from further evaluation;
(e) an Evaluation Committee shall, in writing, inform and advise a bidder who has secured a minimum qualifying score, of the date and time for the opening of a financial bid;
(f) a financial bid shall be opened in public and at the opening of the bid, a procuring entity shall publicly read out the—
(i) name of a bidder,
(ii) technical score, and
(iii) price of the bid;
(g) an Evaluation Committee shall carry out a cost evaluation by—
(i) correcting any arithmetic error,
(ii) converting a bid to a single currency as may be stated in a tender document, and
(iii) assessing whether the price of a bid is reasonable and complete;
(h) subject to any negotiation that may be held between a procuring entity and a bidder, the bidder who submits the lowest priced bid, amongst submitted bids that meet the qualifying score or minimum requirements, shall be recommended for an award of a tender; and
(i) an Evaluation Committee shall prepare a detailed evaluation report which shall be approved by an Accounting Officer.
65. Evaluation by qualification selection method
(1) A procuring entity shall use a qualification selection evaluation method for a simple and small assignment as may be determined by a procuring entity, where the need for the preparation and evaluation of a competitive bid is not justified.
(2) A procuring entity shall, for the purpose of soliciting a bidder under a qualification selection method—
(a) follow a two stage process;
(b) prepare the terms of reference;
(c) request a bidder to supply an expression of interest and information concerning the bidder’s experience and competence relevant to an assignment;
(d) prepare a short list of bidders; and
(e) select a bid with the most appropriate qualification and reference.
(3) A procuring entity shall request a selected bidder to submit a combined technical and financial bid and shall invite the selected bidder to negotiate a contract.
(4) The procedure for a qualification selection evaluation method shall be conducted as follows—
(a) a procuring entity shall—
(i) evaluate the expression of interest together with any supporting information, and
(ii) select a bidder with the most appropriate qualification and reference to whom a tender is to be awarded; and
(b) an Evaluation Committee shall—
(i) prepare a technical evaluation report of an expression of interest received from a bidder, and
(ii) submit a technical evaluation report referred to under subparagraph (i) to an Accounting Officer for approval;
(c) a procuring entity shall not proceed to stage two of an evaluation provided under paragraph (b) before obtaining the approval of an Accounting Officer;
(d) a procuring entity shall request a selected bidder to negotiate the terms of a contract for the provision of the services; and
(e) any negotiation shall be carried out in accordance with the provisions of these Regulations.
(5) For purposes of this regulation, “qualification selection” means a method of evaluation used in the selection of a bidder based exclusively on the quality of a proposal without reference to a price.
(1) A procurement unit shall not cancel a tender without the prior approval of an Accounting Officer.
(2) A procurement unit shall submit a written request to an Accounting Officer to authorise the initiation of a process to cancel a procurement process, and the request shall state—
(a) the reason for a cancellation by the procurement unit to cancel a tender;
(b) the status of the procurement process; and
(c) whether a new procurement process is recommended and if so, provide the justification for the recommendation.
(3) Where an Accounting Officer has approved the cancellation of a tender, a procurement unit shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish such cancellation.
(4) A procurement unit shall avoid a cancellation of a tender as far as may be practicable, and shall consider to cancel a tender where—
(a) a procurement need has ceased to exist or has changed significantly;
(b) due to unforeseen circumstance, the funding of a tender is insufficient for a procurement;
(c) there is a significant or material change to either the scope or a requirement of the tender, including the bidding conditions, the conditions of a contract or any other detail;
(d) all bids received are not responsive;
(e) there is evidence of collusion amongst bidders;
(f) it is in the public interest to cancel the tender;
(g) there is evidence of a corrupt practice by any person involved in a procurement;
(h) there has been a violation of the conditions of the tender during a tendering period;
(i) there has been a contravention of the provisions of the Act; or
(j) there are any other circumstances compelling the procurement unit to cancel the tender.
(5) A procuring entity shall, where a tender is cancelled prior to the opening of a bid, return the bid to a bidder, unopened.
(6) Where a cancellation of a tender is due to a procuring entity’s omission, the procuring entity shall refund a bidder the cost of buying a bidding document and, where applicable, allow the bidder to participate in a re-tender at no cost.
PART VIII
Procedure for Negotiation of Contracts and Award of Tenders (regs 67-79)
(1) A procuring entity shall, before an award of a tender, immediately invite a preference bidder for negotiation.
(2) A procuring entity shall, in an invitation referred to under subregulation (1), inform a bidder of any information in the proposal of the bidder, which requires further negotiation.
(3) The negotiation referred to under subregulation (2) may include a discussion on—
(a) the comments made by a bidder on the scope of services;
(b) the manpower or human capital engaged by a bidder;
(c) a work programme proposed by a procurement agent or a procurement service provider; and
(d) any inherent risk relating to a contract.
(4) The discussions referred to under subregulation (3) shall not substantially alter the original terms of reference or the requirements of a contract:
Provided that the final negotiation terms will be incorporated in the contract reference and the agreed methodology shall be incorporated in a “Description of Services” which shall form part of the contract.
(5) A key employee proposed for replacement of another employee shall have qualifications and experience equal to or better than the key employee initially proposed.
(6) Any financial discussion shall be limited to a negotiation by a contractor withholding tax liability or any other issues relating to tax that may not be clear in a bid.
(7) A procuring entity shall, where a discussion in terms of this regulation fails to result in an acceptable contract, terminate or cancel the procurement process or negotiation.
(8) A procuring entity shall inform a contractor of the reasons for the termination of a procurement process or negotiation.
(1) A bidding document shall state the procedure to be followed for an award of a tender.
(2) An issuance of an acceptance letter to a successful bidder shall—
(a) constitute an act of the placement of a contract; and
(b) be after the observance of a cooling-off period and the resolution of a complaint, if any.
(3) A procuring entity shall, within 21 days, sign a contract with a bidder who has been awarded a tender after the lapse of a cooling-off period, where there is no complaint lodged with an Accounting Officer in terms of section 104 of the Act.
(4) A procuring entity shall, where a successful bidder fails to sign a contract, or fails to provide any required security for the performance of the contract, with the approval of an Accounting Officer, withdraw an award decision in accordance with these Regulations.
(5) A procuring entity shall not issue a communication in any form that would bind the procuring entity unless an Accounting Officer has approved the issuance of the communication.
(6) After the approval referred to under subregulation (5), a procuring entity shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish an award decision of a tender within three days of the outcome.
(7) A procuring entity shall, after the publication of an award decision referred to under subregulation (11), allow a cooling-off period in accordance with section 104 of the Act.
(8) A procuring entity shall, where a debriefing has been requested by a bidder, provide the debriefing to the bidder in accordance with these Regulations.
(9) An Accounting Officer shall sign and submit a letter to a successful bidder and a bidder who is has not been successful indicating the outcome of a tender and the reasons of the outcome.
(10) An Accounting Officer shall, where a contractor has not lodged a complaint during a cooling-off period, proceed to award the tender.
(11) An Accounting Officer shall, where a contractor has lodged a complaint during a cooling-off period, resolve the complaint within 14 days of the receipt of such complaint, before he or she proceeds with a procurement process in accordance with these Regulations.
(12) A procuring entity shall, upon receipt of a letter of acceptance from a bidder, place a contract with a successful bidder.
69. Types of contracts and pricing approaches
A procuring entity may use any type of a contract and any approach of pricing provided for in these Regulations, or any other type of a contract authorised by the Authority.
(1) A procuring entity may use a lump sum contract for works, services or supplies where the content, duration and output of a contract are well defined.
(2) A lump sum contract shall consist of a fixed total price for the performance of the contract.
(3) A procuring entity shall, subject to the conditions of a contract, pay a contractor a fixed lump sum price of the contract irrespective of the actual quantity, time or work required for the performance of such contract.
(4) Any payment under a lump sum contract shall be dependent on the specified output, deliverable or event, which may include but not limited to—
(a) the delivery of supplies in accordance with the appropriate delivery documentation specified in the contract;
(b) the installation or commissioning of supplies;
(c) the milestones in any works or services;
(d) the provisional or final acceptance of works, services or supplies;
(e) a report or recommendation;
(f) the completion of any drawing, bill of quantity, activity schedule or solicitation documents;
(g) any software programme; or
(h) any workshop or training programme.
71. Time-based or measured works contracts
(1) A procuring entity may use a—
(a) time-based contract for services, where the scope and duration of a contract is difficult to define; or
(b) measured works contract for works, which are not well defined, likely to change in quantity or specification, or where difficult or unforeseen site condition is likely to occur.
(2) Any payment under a time-based contract or a measured works contract shall be for the actual quantity delivered or performed, using a fixed unit price for different items specified in a contract.
(3) A payment for a contract of services shall be based on—
(a) the agreed fee rate for a specified period of time, for either a nominated personnel or a certain type or grade of personnel; and
(b) any reimbursable item such as transportation and subsistence allowance, using either the actual expense or any agreed unit price.
(4) A payment for a contract of works shall be based on any agreed rate for various items of works, as may be priced by a contractor in the bill of quantity.
(5) A time-based contract and a measured works contract shall include a maximum total contract amount, which may include a contingency amount for any unforeseen work, and a procuring entity shall not exceed the maximum amount without the authority of an Accounting Officer.
(6) A procuring entity shall monitor a time-based contract and measured works contract closely to ensure that progress of the contract, and that a payment claimed by a supplier is appropriate, and in accordance with such contract.
(1) A procuring entity may use a rate contract for works, services or supplies—
(a) where an item is required by the procuring entity on a “call off” basis, and the quantity and time of the requirement cannot be defined in advance; or
(b) to reduce a procurement cost or lead time for any item which is continuously required by the procuring entity over a period of time, by having the item available on a “call off” basis.
(2) A payment under a rate contract shall be for the actual quantity delivered or performed during the period of time covered by the contract, and using a fixed unit price specified in such contract.
(3) A rate contract may include an estimated quantity or value of a contract but shall not commit a procuring entity to purchase the estimated quantity or value of the contract.
(4) A rate contract shall specify an arrangement for obtaining any specific requirement during the period of the contract on a “call off” basis or by using a purchase order.
(1) A procuring entity may use a framework contract for works, services or supplies which shall operate for an agreed period—
(a) where an item is required by the procuring entity on a “call off” basis, and the quantity and time of the requirement cannot be defined in advance; or
(b) to reduce a procurement cost or lead time for any item which is continuously required by the procuring entity over a period of time, by having the item available on a “call off” basis.
(2) A payment under a framework contract shall be for the actual quantity delivered or performed during the period of time covered by the contract, using a fixed unit price specified in such contract.
(3) A framework contract may commit to the purchase of a minimum quantity or value of a contract, or to the purchase of any similar requirement from a supplier, where necessary or preferable, to obtain a competitive price, and may specify a maximum quantity or value of the contract to be purchased under the contract.
(4) A framework contract shall specify an arrangement to obtain a specific requirement during a period of the contract, using a purchase order as may be required by a procuring entity.
74. Percentage based contracts
(1) A procuring entity may use a percentage based contract on works and services where a fee is paid directly to an estimated or actual cost such as the value of a contract.
(2) A percentage based contract shall define a total cost from which the percentage is to be calculated and paid.
(3) A percentage contract may include—
(a) a fixed target cost;
(b) any minimum or maximum fee;
(c) a sliding scale of fees; or
(d) a hybrid encompassing paragraph (a), (b) or (c).
75. Cost reimbursable and target price contracts
(1) A procuring entity may use a cost reimbursable or target price contract for any—
(a) emergency works or services where there is insufficient time to calculate any cost involved; or
(b) high risk works where it is economical for a procuring entity to take the risk of the variation of a price than to pay a contractor to accept the risk, or where a contractor does not accept such risk.
(2) Any payment for a cost reimbursable contract and a target contract shall be for—
(a) the actual cost of the works or services, as may be indicated in a receipt and any other necessary document; and
(b) a fee or profit as may be specified in a contract.
76. Retainer and success fee contracts
(1) A procuring entity may use a retainer contract or a success fee contract where a procurement agent or a procurement service provider is required to make preparations in the sale or merger of a company or statutory body, particularly in the privatisation of a public body.
(2) The remuneration of a procurement agent or a procurement service provider may include a retainer fee and a success fee, the success being expressed as a percentage of a sale price of the company or the statutory body.
77. Indefinite delivery contract or price agreement
(1) An indefinite delivery contract—
(a) shall be used where a procuring entity requires an “on call” specialised services to provide advice on a particular activity, the extent and time of which cannot be defined in advance; or
(b) may used to retain, an advisor for the implementation of any complex project, an expert adjudicator in a dispute resolution panel, an institutional reform, a procurement advice, a technical troubleshooting, or any other, for a period of 12 months or more.
(2) A procuring entity and an advisor, expert or institution, referred to under subregulation (1) shall agree on a unit rate to be paid to the advisor, expert of institution and such payment shall be made on the basis of the time used by such advisor, expert or institution.
(1) A procuring entity shall use a contract document included in the applicable standard bidding document issued by the Authority.
(2) A contract document referred to in subregulation (1) shall state the type of a contract and the key terms of the contract which shall apply to a procurement.
(3) A contract document shall include the terms and conditions of a contract, and in particular—
(a) the general conditions of a contract, or a statement of the general conditions which shall be applicable to the contract;
(b) the special conditions of a contract;
(c) a statement that the special conditions of a contract shall prevail over the general conditions of the contract and the order of priority of any other contract documents;
(d) a description of the works, services or supplies purchased by a contract, including any technical requirement, quantity and delivery or completion schedule, based on a statement of any requirement included in the bidding document and a bid of a supplier, subject to any modification that may be agreed upon by a procuring entity and the supplier;
(e) the total contract price, and where applicable, any condition applicable to the variation, adjustment, modification or recalculation of the actual price;
(f) the condition for payment, including a payment period, schedule, currency and any document required;
(g) any requirement for securities;
(h) the procedure agreed for the resolution or settlement of any dispute;
(i) any other key contract terms as may be required by a bidding document, including a warranty, insurance, subcontract, an inspection and acceptance, completion of a contract, delays in the performance or nonperformance, force majeure and, variation, modification and termination of the contract; and
(j) any information relating to a policy of Government on fraud and corruption, including the suspension of a bidder.
(4) The pricing of contract shall be in accordance with a particular contract chosen to be used by a procuring entity under these Regulations.
79. Change in circumstances of contractors
(1) In the event that there is a change in the circumstances of a contractor, which materially affect the capacity of the contractor to successfully deliver the required and scheduled output, such contractor shall inform a procuring entity within the period specified in a contract, or within five days where a period has not been stated in a contract.
(2) A procuring entity shall, where a contractor requests a procuring entity to allow for the change referred to in subregulation (1), in consultation with a procurement unit submit the request, together with the recommendation of the procurement unit to an Accounting Officer for a decision.
(3) For purposes of this regulation, “change in the circumstances of a contractor” includes a material change in the capacity of the contractor to execute a contract in terms of finance, employees or personnel, equipment or any other change that was not originally agreed between a procuring entity and such contractor.
(4) A procuring entity shall consider an immediate termination of a contract upon the occurrence of one or more of the following events, where—
(a) the business of a contractor ceases to operate;
(b) a resolution is passed for the liquidation of the business of a contractor, or the business of the contractor is placed under a provisional or final liquidation in terms of the Companies Act (Cap. 42:01);
(c) a statutory manager is appointed to manage the affairs of the business of a contractor under judicial management;
(d) a contractor is declared insolvent in terms of the Insolvency Act (Cap. 42:02);
(e) a contractor undergoes a change of ownership, merger or acquisition;
(f) a contractor loses key personnel or a key employee and fails to replace the personnel or employee with the equivalent or better personnel or employee within a specified period; or
(g) any other circumstance which may hinder the performance of a contractor to deliver according to the contract.
PART IX
Conditions for Deviation from Applicable Procurement Method, Procurement Process, etc. (regs 80-83)
(1) A procuring entity shall, in Form J set out in Schedule 1 apply to the Authority to deviate from the use of a procurement method, procurement process, rule or a bidding document.
(2) An application for a deviation made in terms of subregulation (1) shall include—
(a) a statement of a procurement method, procurement process, rule or a bidding document to be used by a procuring entity;
(b) the justification for deviation from a procurement method, procurement process, rule or a bidding document, including a justification of any exceptional requirement, market condition or international standard or practice which regulate a procurement requirement;
(c) a justification of any proposed alternative procurement method, procurement process, rule or a bidding document, including a summary of how the proposed alternative differs from a standard procurement method, procurement process, rule or a bidding document;
(d) a statement of whether the deviation is required for a single procurement requirement or for a number of procurement requirements of the same and the period of time applicable to such deviation; and
(e) any other relevant information as may be required by the Authority.
(3) The Authority shall consider an application in terms of this regulation and make a decision within 10 days from the receipt of the application.
(4) The Authority may approve an application made in terms of this regulation, as submitted or with any modification or condition, or reject an application and state the reasons for the rejection.
(5) An approval by the Authority of an application made under this regulation shall state whether the approval is for a single procurement requirement or for a number of procurement requirements of the same class.
(6) A procuring entity may submit an application for the renewal of a deviation from a procurement method, procurement process, rule or a bidding document in accordance with subregulations (1) and (2).
81. Monitoring and profile analysis of deviations
(1) The Authority shall keep and maintain a register of any deviation approved in terms of these Regulations.
(2) The register referred to in subregulation (1) shall include any information necessary for the Authority to—
(a) monitor compliance with any condition of a deviation;
(b) assess the effectiveness of any deviation; and
(c) analyse any trend in a profile of a deviation.
(3) The Authority may, where a procuring entity fails to comply with any condition of a deviation, require an Accounting Officer to take steps to ensure compliance, or, in writing, revoke the deviation and provide a reason for such revocation.
(4) The Authority shall analyse any trend in a profile in terms of subregulation (2)(c) to determine whether—
(a) any changes are required to any tender document;
(b) additional circular which provide further guidance on a particular matter should be issued; or
(c) any additional tender document is required to meet a particular need of a procuring entity.
82. Alternative procurement process relating to external obligations
(1) A procuring entity shall, where the procuring entity is required by an external obligation or an international agreement to use an alternative procurement process, in Form K set out in Schedule 1 apply to the Authority for an approval to use the alternative procurement process.
(2) An application referred to in subregulation (1) shall be accompanied by a justification for the application and a supporting information with a copy of an external obligation or international agreement.
(3) The Authority shall consider an application under this regulation and make a decision within 10 days of the application.
83. Retroactive procurement activities
(1) A user Department shall, in Form L set out in Schedule 1, request an Accounting Officer to approve a retroactive procurement process, including a procurement within a micro procurement threshold.
(2) An Accounting Officer shall assess the nature of a request to approve a retroactive procurement in order to—
(a) determine whether the procurement was due to an urgent requirement or an emergency arising from any special circumstance provided under these Regulations; and
(b) ascertain whether a procuring entity has received the benefit of the works, services or supplies prior to approval.
(3) A procurement unit shall analyse a request from a user Department made in terms of this regulation and ascertain whether the request is reasonable before the procurement unit submits such request to an Accounting Officer.
(4) An Accounting Officer shall, before approving a request made by a user Department in terms of this regulation, consider the request on its own merit.
(5) An Accounting Officer shall consider a request made in terms of this regulation on any circumstance based on urgency or emergency where there is an—
(a) urgent matter involving public safety or security to protect life or the environment; or
(b) incident of a health hazard.
(6) A procurement unit shall submit a request made in terms of this regulation to an Accounting Officer within seven days from the date of receipt of the request.
(7) A procurement unit shall—
(a) confirm that the works, services or supplies procured were not in stock or under any existing framework contract or similar arrangement;
(b) within seven days of the occurrence of a procurement process, prepare a brief report for submission to an Accounting Officer, which shall include any detailed information of a requirement; and
(c) submit any invoice and any other related document.
(8) An Accounting Officer shall report any retroactive procurement to the Authority within 14 days of authorising the procurement.
PART X
Reservation and Preferential Treatment (regs 84-97)
84. Requirements for reservation and preference schemes
(1) An Accounting Officer shall, where there is an international agreement or a reservation and preference scheme, which favours a citizen or a citizen contractor, or local contractor, bring the international agreement or reservation and preference scheme to the attention of the citizen or a citizen contractor, and cause advantage to be taken of such international agreement or reservation and preference scheme.
(2) An Accounting Officer shall, in ensuring that the agreement or scheme referred to under subregulation (1) is brought to the attention of a citizen or citizen contractor, or local contractor, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish information relating to such agreement or scheme, and include the same information in a bidding document.
(3) A procuring entity shall, where applicable, in accordance with any existing reservation or preference scheme, limit participation in a procurement process to a category of contractors in order to—
(a) ensure the development of a citizen or citizen contractor, or local contractor; or
(b) comply with any agreement which requires the subcontracting of a contract to a citizen or citizen contractor, or local contractor.
(4) Where a procuring entity limits participation in a procurement process in terms of this regulation, the procuring entity shall provide—
(a) a statement to that effect, in either a tender document or pre-qualification notice, or both; and
(b) information on how either the reservation or preference scheme, or both, shall be applied.
(5) A procuring entity shall allow certain price preference which does not affect a price of a tender, but which is taken into account when calculating the comparative price as stipulated in a tender document.
(6) A procuring entity shall take into consideration, existing reservation and preference scheme as may be issued by the Minister from time to time.
(7) The issuance of a tender document to which a reservation or preference scheme is applicable, without the inclusion of the reservation or preference scheme shall not be valid.
(1) An Accounting Officer shall ensure that a tender document of a procuring entity include a mandatory requirement as a preliminary evaluation criteria specifying that a successful bidder shall—
(a) transfer a skill on technology or any other skill to a citizen or citizen contractor, or local contractor, through the training, mentoring and participation of the citizen or citizen contractor, or local contractor; and
(b) reserve an employment opportunity in works, consultancy services and non-consultancy services including a professional at a management level in accordance with the guidelines as may be issued by the Authority.
(2) A procuring entity shall, in addition to the mandatory requirement referred to in subregulation (1), ensure that a tender document includes an additional mandatory requirement that the bidding document shall provide for a local content plan to transfer skills under this regulation.
(3) A local content plan referred to in subregulation (2) shall include—
(a) a position reserved for an employment of a citizen or targeted citizen;
(b) capacity building and competence development programme for a citizen or targeted citizen;
(c) a time frame within which to provide an employment opportunity;
(d) a demonstrable effort for accelerated capacity building of a citizen or targeted citizen;
(e) a succession plan and management; and
(f) a plan demonstrating a linkage with any local industry, which ensures that an input is, sourced from locally manufactured article, material and supplies, partially mined or produced in Botswana, or where applicable, have been assembled in Botswana.
(4) An Accounting Officer shall, in the case of an international open bidding, and where competition does not meet the requirements of this regulation, cause a report to be prepared detailing proof of the inability to meet such requirements and measures to be taken to ensure compliance, and submit the report to the Authority to issue a waiver.
(1) Where a primary contractor has entered into a contractual arrangement with a citizen subcontractor, in terms of section 81 of the Act, a margin of preference in an evaluated price of a tender shall be applied in terms of section 73 of the Act.
(2) A citizen subcontractor referred to in subregulation (1) shall demonstrate the—
(a) technical expertise;
(b) capability; or
(c) competence to perform or execute the contract.
87. Timely payment for performed contracts
A procuring entity shall, after the certification of works, performed contract services or supplies, pay immediately or within the period provided in the contract.
(1) A reservation scheme shall have as its objective, the development of a business owned by a citizen or citizen contractor, or local contractor, by reserving procurement for the citizen or citizen contractor, or local contractor.
(2) The application of a reservation scheme and the eligibility of a contractor who qualifies for the reservation scheme shall be stated in a tender document and a pre-qualification notice.
(3) The Authority shall, in consultation with the Economic Empowerment Office and a procuring entity, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish an estimated cost for the procurement of works, services or supplies to be reserved for a citizen or citizen contractor.
(4) An Accounting Officer may prepare a report detailing proof that a procuring entity is unable to purchase works, services or supplies manufactured locally, and submit the report to the Authority.
(1) A preference scheme shall have as its objective, the development of a business owned by a citizen or citizen contractor, or local contractor, by giving the business a competitive advantage in deducting a specified margin from an evaluated price of a bidder who is eligible for the preference scheme during an evaluation of a financial bid.
(2) A preference scheme for a bid offering goods manufactured, mined, extracted or grown in Botswana shall have as its objective, the development of the manufacturing industry by giving the bid a competitive advantage in deducting a specified margin to an evaluated price of a bid which is eligible for the preference scheme during an evaluation of a financial bid.
(3) Any instrument, document or bidding package relating to a preference scheme shall state—
(a) eligibility for the margin of preference in terms of ownership, location of a bidder or production facilities, origin of labour, raw material or component, extent of subcontracting or association with a citizen, or any other relevant factor;
(b) the document required as proof of eligibility for the margin of preference; and
(c) the percentage of the margin of preference and the manner in which it shall be applied during an evaluation.
(4) The information referred to in subregulation (3) shall be provided for in a tender document.
(5) A percentage for a preference to be applied under subregulations (1) and (2)—
(a) shall be set by the Minister in consultation with the Economic Empowerment Office established under the Economic Inclusion Act and a procuring entity; and
(b) may be reviewed from time to time.
90. Promotion and support of innovative products
(1) A procuring entity shall, in accordance with section 76 (2) (f) of the Act, promote innovation, local technology and the commercialisation of a procurement process through the procurement of any innovative product that is in the public interest—
(a) where there is proof of a concept, relating to, and the supply of, the innovative product; and
(b) to develop the procurement support system for the innovative product.
(2) The Authority shall provide for a guideline on a method to be used to promote the procurement of an innovative product under this regulation.
(3) The Authority may, where an innovative product designated as such under subregulation (2) fails to continue to meet any standard set by an Accounting Officer for such designation, revoke the designation.
91. Single preference for bidders
(1) Subject to section 72 of the Act, a citizen or citizen contractor shall be given one reservation or preference scheme at a time for a procurement process.
(2) An evaluation of a bid relating to a reservation and preference scheme shall use the highest benefit that a bidder may be given to avoid benefiting more than once.
(1) A procuring entity may unbundle a category of works, services or supplies in a practicable quantity, in order to ensure the maximum participation of a citizen or citizen contractor, or local contractor.
(2) A procuring entity may, when unbundling a tender in accordance with subregulation (1), lot works, services or supplies in a quantity that is affordable to a targeted citizen participating in a procurement process, and such lot shall not be interdependent.
93. Security for tender and performance bond
(1) A procuring entity may require security for a tender, as may be applicable.
(2) A procuring entity shall not require security from a 100 per cent citizen owned micro, small and medium enterprise participating in a procurement process with reservation scheme, unless otherwise determined by the Minister.
94. Award of tenders based on rota system
(1) A procuring entity may use a rota system for a low value standardised and provision of works, services and supplies.
(2) A procuring entity may use a rota system for the procurement of works, services and supplies in accordance with the guidelines issued by the Authority.
(3) A procuring entity shall use a database kept and maintained by a competent authority.
(4) A procuring entity shall award a low value standardised and common supply of works, services or supplies sequentially, based on a list such that each bidder under this regulation is afforded the opportunity to be awarded a tender.
(5) A procuring entity shall ensure that a bidder selected for works, services or supplies shall not have the same shareholding, ownership, membership or directors, as a previously awarded bidder.
(6) For purposes of this regulation, “rota system” means a system of awarding tenders on a rotational basis following a sequential list of prequalified bidders one after the other and no awarded bidder is considered until the list is completed.
(1) The application of a reservation and preference scheme shall be monitored by the Authority in accordance with the provisions Act.
(2) The Authority shall request a procurement entity to submit a report on the implementation of a reservation or preference scheme.
(1) A requirement relating to a beneficial owner shall be in Form M set out in Schedule, and shall be included in a tender document.
(2) A procuring entity shall verify the information relating to a requirement referred to under subregulation (1) with the relevant competent authority.
(3) Where there is a change relating to a beneficial owner, a procuring entity shall be informed of the change within two days from the date such change occurred, in order to ensure compliance with the conditions of an award of a tender.
(4) During a tender process, a change relating to a beneficial owner shall not have taken place six months before the floating of a tender, and not within 12 months after the commencement of the contract, except by operation of law.
(5) A beneficial owner shall not submit more than one bid in a tender.
97. Primary contractors and subcontracting
(1) Where a procuring entity deems it feasible to allow for subcontracting, the procuring entity shall do so in order to develop skills and the contracting capacity of a 100 per cent citizen owned micro, small and medium enterprise.
(2) Where there is subcontracting, a primary contractor shall be required to subcontract a percentage of the total value of works, services or supplies to a citizen or citizen contractor, or local contractor.
(3) Where a procuring entity deems it feasible to subcontract in terms of subregulation (1), the procuring entity shall, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish a tender with a specific condition that a successful bidder shall subcontract a minimum of the threshold to be determined by the Minister.
(4) A subcontracting under this regulation shall be made in one or more of the following methods—
(a) domestic subcontracting, where a bidder selects a subcontractor to engage in the contract;
(b) nominated subcontracting, where a procuring entity selects a subcontractor through a competitive process and instructs a bidder to engage the selected subcontractor; or
(c) selected subcontracting, where a procuring entity, in consultation with a primary contractor, selects a subcontractor in terms of requirements of a contract.
PART XI
Procedure, Rules and Thresholds for Management, Amendment or Variation of Contracts (regs 98-121)
98. Contract management and responsibilities
(1) An Accounting Officer shall ensure effective contract management within a procuring entity through a procurement unit, and shall be responsible for monitoring and coordination of contract management in order to ensure—
(a) that there is progress and timely completion of works, services and supplies in accordance with the terms of the contract;
(b) the management of any deviation of a contract by a contractor, including the implementation of any amendment or variation of a contract under these Regulations;
(c) that a contractual obligation is discharged in accordance with the contract;
(d) a monthly submission, review and analysis of the implementation of a contract progress report, including any other related report, and quarterly performance review report, from a project team; and
(e) the submission of a report referred to in paragraph (d) to the Accounting Officer.
(2) The report referred to in subregulation (1)(d) shall be in a manner determined by the Authority.
(3) A procuring entity shall, where an agreement to remedy an irregularity in the performance of a contractor cannot be reached, inform the contractor, and may in addition, invoke the proceedings for dispute resolution as may be provided in a contract.
(4) A procuring entity may, in the event that a contractor fails to provide works, services or supplies in terms of the contract—
(a) withhold payment of any moneys retained;
(b) call for any performance security if such security has been furnished by the contractor; or
(c) terminate the contract.
(1) An Accounting Officer shall designate an employee within a procurement unit, who possesses the skill and experience in contract management, as a contract manager for any awarded contract.
(2) A contract manager shall be responsible for—
(a) the monitoring of the performance of a contractor in order to ensure that a delivery or performance obligation is met, or any action required to be taken is taken by an Accounting Officer in the event that the obligation is not met;
(b) ensuring that a contractor submits any required document;
(c) ensuring that a procuring entity meets any of its payment and any other obligation under a contract;
(d) ensuring that there is adequate cost, quality and time control, as may be necessary;
(e) the preparation of any required contract variation after the approval of an Accounting Officer;
(f) the submission of any required amendment to a contract;
(g) the management of any handover or acceptance procedure;
(h) the submission of any recommendation for the termination of a contract;
(i) for preparation of a periodic contractor review progress report;
(j) the keeping and maintenance of a project risk register to monitor any identified risk to a contract, and mitigation plan;
(k) ensuring that a contract is complete before the closing of the contract file and the preparation of an end of activity report in Form N set out in Schedule 1;
(l) ensuring that a record for the management of a contract is kept and maintained;
(m) ensuring that a contractor and a procuring entity comply with a contract and the provisions of the Act;
(n) the submission of information on the status and progress of a contract;
(o) the management of the drafting and generating of contracts.
(3) A contract manager shall, when performing his or her responsibilities under this regulation hold a review meeting periodically or as may be necessary to review the performance of a contract, deliberate on the way forward and prepare the reports referred to under subregulation (3).
(4) The review of a contract referred to under subregulation (4) shall consider the following—
(a) the timeline for the performance of a contract;
(b) the cost and quality performance;
(c) the risk analysis;
(d) the operational effectiveness;
(e) whether the procedure for delivery is appropriate; and
(f) any other relevant information.
100. Inspection of works, services and supplies
(1) A procuring entity shall have the right to inspect works, services or supplies at any reasonable time or place, including—
(a) during manufacture or construction;
(b) before shipment;
(c) on delivery or completion; or
(d) before final acceptance.
(2) A contractor shall ensure that a procuring entity’s right of inspection is extended to a subcontractor.
(3) A procuring entity may—
(a) observe a test conducted by a supplier or subcontractor under the supplier’s or subcontractor’s own quality control procedure;
(b) conduct its own inspection; or
(c) employ an independent third party to undertake a technical inspection.
(4) A contract shall state any requirement relating to an inspection, including—
(a) the type of inspection to conducted and the standard to be met;
(b) the location for inspection;
(c) the person to carry out the inspection;
(d) the date the inspection is to be conducted;
(e) the person responsible for the payment of the various costs of inspection;
(f) any notification or documentation required from a supplier relating to an inspection;
(g) whether any sample provided for inspection shall be provided for free of charge to a contractor; and
(h) where works or services fail, a supplier shall be liable for the rectification of any defect at his or her own expense and the cost of any additional inspection required.
101. Inspection and acceptance of works, services and supplies
(1) A procuring entity shall before accepting any works, services or supplies, or signing any interim or completion certificate, supplies receipt note or any related document, ensure that—
(a) the correct quantity or input of works, services or supplies has been received;
(b) the works, services or supplies meet the technical standard defined in a contract;
(c) the works, services or supplies have been delivered or completed on time, or that any delay has been noted;
(d) any required deliverable has been submitted; and
(e) any required manual or document has been received.
(2) Any works, services or supplies delivered shall, where applicable, be inspected, sampled and tested by a procuring entity and the works, services or supplies shall not be accepted if they are not compliant with the terms of a contract.
(3) Any works, services or supplies that do not meet the terms and conditions of a contract shall, in writing, be rejected by a procuring entity in accordance with the terms and conditions of the contract.
(4) A contractor shall be responsible for any cost and expense incurred due to a rejection of works, services or supplies referred to in subregulation (2).
(5) Any supplies rejected shall be collected by a contractor from the premises of a procuring entity within a specified time in accordance with a contract.
(1) A contract shall specify the—
(a) grounds on which the contract may be terminated;
(b) procedure to be applicable to the termination of the contract; and
(c) any other implication that may arise from the termination of the contract.
(2) Subject to subregulation (1), a contract manager may, in consultation with the legal office of a procuring entity, recommend to an Accounting Officer for the termination of a contract.
(3) A recommendation referred to in subregulation (2) shall state—
(a) any ground for the termination of a contract;
(b) any action which has been taken to avoid the termination of a contract; and
(c) a cost, if any, which a procuring entity shall be liable after the termination of a contract.
(4) An Accounting Officer may approve or reject a recommendation referred to in subregulation (2).
(5) Where an Accounting Officer has approved the termination of a contract, such termination shall be done in accordance with the terms of the contract.
(6) An Accounting Officer shall, where a contract is terminated, authorise the payment for the value of the works, services or supplies completed less any advance payment received by a contractor up to the date of a notice of termination.
(7) An Accounting Officer shall, where the Accounting Officer approves a recommendation referred to in subregulation (2), inform a contractor of such decision.
103. Termination of convenience
(1) A procuring entity may terminate a contract for convenience with the approval of an Accounting Officer.
(2) A procuring entity shall, where a contract is terminated for convenience, pay a contractor any undisputed amount due under the contract.
(1) A procurement unit shall, where a contract needs to be amended in order to change the original terms and conditions of the contract, issue a contract amendment taking into account any change in circumstances of both parties to the contract.
(2) A procurement unit shall—
(a) prepare a contract amendment in consultation with the legal office of a procuring entity and submit the contract amendment to an Accounting Officer for approval; and
(b) after the approval referred to under paragraph (a), issue the contract amendment in the same manner as the original contract.
(3) A contract amendment shall be initiated by either of the parties.
(4) A procurement unit shall not issue a contract amendment before—
(a) the approval referred to in subregulation (2)(a); and
(b) money being committed in the full amount of a price of the amended contract over the required period of such amended contract.
(5) A contract amendment for any additional quantity of the same item shall use the same unit price as the original contract or a new price according to any subsequent increase in the price during the course of the contract.
(6) An amendment or cumulative amendment, of a contract, may be increased by up to 25 per cent of the original price of a contract with a prior approval of an Accounting Officer.
(1) A variation of a contract may be issued by a procuring entity with the approval of an Accounting Officer including where the variation is within a contingency element of the contract, or such limit as the Accounting Officer may allow.
(2) Where a variation exceeds the contingency element, the variation may be increased by up to 25 per cent of the original contract price.
(3) A contract may be varied according to a compensation event or any matter relating to the variation of the contract provided in such contract.
(4) A variation of a contract shall only be permitted in accordance with the terms and conditions of the existing contract and shall be authorised by an Accounting Officer.
(5) Any money that has been committed under any contingency plan included in the total contract value may be used—
(a) to cover any variation in cost according to any formula stated in the contract; or
(b) for any additional works or services that are considered to be necessary by a procuring entity.
(1) A procuring entity shall, subject to any condition of a contract which has been included in a tender document, place the contract on a fixed price for a procurement that is to be completed within 12 months from the date of the commencement of such contract.
(2) A procuring entity may place a contract with a price adjustment provision for a procurement requirement with a duration of more than 12 months.
(3) The Authority shall provide a procuring entity with advice in connection with internationally accepted practice in relation to a pricing standard for any procurement requirement.
(1) A provision relating to a price adjustment may, subject to a condition of a contract, be included in the contract whose duration exceeds 12 months, where it is more economical for a procuring entity to accept the inflation risk than to pay an additional cost for a supplier to accept the risk.
(2) Where a provision relating to a price adjustment is included in a contract referred to in subregulation (1), a method for calculating the price adjustment, and any restriction or condition on such price adjustment, shall be clearly stated in a bidding document.
(3) A price adjustment shall be calculated by the use of a pre-defined formula which separates the total price into components such as labour, equipment, material and fuel, which are adjusted by price indices specified for each component:
Provided that if the currency of the money to be used for payment is different from the source of the input and corresponding index, a correction factor shall be applied in the formula, to avoid incorrect adjustment.
(4) A formula, price index, correction factor referred to in subregulation (3), and a base date for application shall be clearly stated in a bidding document and resulting contract.
(5) A formula and a price index referred to in subregulation (3) shall be appropriate to the type of procurement, the source of an input and shall use the industry standards wherever possible.
(6) A procuring entity shall, where there are no industry standards, or any other appropriate formula available, use the sample formula specified in this regulation.
(7) A request for a price adjustment shall be submitted to a procuring entity by a contractor, not more than three months from the time the circumstances upon which the price adjustment is based arise.
(8) A procuring entity shall, where there is a statutory price adjustment, pay an adjusted price to a contractor from the effective date of the statutory price adjustment, upon submission by the contractor of a request for such payment.
(1) A bidding document and any resulting contract shall detail the payment terms that shall apply to the contract, and such payment terms shall specify the—
(a) method of payment;
(b) payment structure;
(c) payment document;
(d) period of payment; and
(e) currency of money used for payment.
(2) A method of payment under any contract entered into in terms of these Regulations shall be the method acceptable to the Bank of Botswana.
(1) A procuring entity shall consider and state a payment structure in a bidding document and the resulting contract for each procurement.
(2) A payment structure and an amount of payment shall be determined for each procurement requirement by best practices, and the payment structure may include—
(a) an advance payment;
(b) a phased payment, which shall be linked to a specific deliverable and may be stated in percentage terms of a defined amount or specific amount;
(c) a regular interim payment, which shall be linked to a specific contract event, such as an installation or a warranty; and
(d) any retained payment, which shall be linked to a specific contract event, such as an installation or a warranty.
(1) Subject to the provisions of the Public Finance Management Act (Cap. 54:01), and where best practices dictate, a procuring entity 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 be required and the requirement for a security shall be stated in a bidding document.
(3) An advance payment may be made for any activity including—
(a) the mobilisation of costs in respect of the provision of works;
(b) the start-up costs in respect of the provision of services; and
(c) any special circumstances in respect of the provision of supplies, such as items that have to be specially or custom manufactured.
(4) Notwithstanding subregulations (1) and (2), an advance payment may, with the approval of an Accounting Officer, be made for works, services or supplies without the requirement for advance payment security, where—
(a) such payment is required in accordance with an industry practice; or
(b) there is a special circumstance with a justifiable reason.
(5) An advance payment shall be recovered from any subsequent payment due to a contractor, which shall be subject to a reduction in equal installment over a period not exceeding 50 per cent of the period of a contract.
111. Interim or phased payments
(1) A contract may, where best practices dictate, be entered into by a procuring entity in which an interim or a phased payment is permitted.
(2) A procuring entity shall, where an interim or a phased payment is permitted, comply with the following conditions—
(a) a payment shall be linked to a specific and verifiable deliverable, contract event, time period or work, which must be stated in a bidding document and the resulting contract;
(b) any individual payment shall not exceed the cost or value of a deliverable, time period or work to which it is linked;
(c) a payment may require the provision of the payment security where, during the delivery of the works, services or supplies, risk or title of such works, services or supplies remained with the contractor; and
(d) where the payment security is determined to be appropriate, the provisions of these Regulations shall apply.
(1) Where a procuring entity has determined that a retained payment is appropriate, a contract shall provide—
(a) a percentage or amount of a total value of the contract to be retained;
(b) the period or event at which the retention shall be released; and
(c) any document that shall be used as proof of, or certify, the period or event referred to in paragraph (b).
(2) A payment for a security may be substituted for a retained payment in accordance with subregulation (1).
(1) A payment shall not be made to a contractor or in respect of any deliverable due against works, services or supplies contract without the receipt of the deliverable as provided in the contract.
(2) Where a payment is made before receipt of a deliverable—
(a) a payment security shall be required and such requirement shall be stated in a bidding document;
(b) a payment security shall be in the manner and from an institution that is acceptable to the Bank of Botswana;
(c) the security shall be in the format provided by the Authority in a bidding document; and
(d) the security provided by a contractor shall be valid for an agreed period beyond the final expected transaction date of the resulting contract or expected release date, as may be appropriate.
(1) A procuring entity shall state, in a bidding document, a document against which a payment is to be made.
(2) A document referred to in subregulation (1) may include information certifying the—
(a) delivery of a requirement or receipt of a requirement by the consignee in accordance with the delivery terms of a contract;
(b) itemised list of the requirements within any package delivered;
(c) insurance coverage of a delivered item;
(d) successful inspection of a delivered item;
(e) origin or eligibility of a delivered item;
(f) payment of a particular cost specified in a contract, such as duty, levy or tax that may be due and payable by a contractor on any item delivered;
(g) acceptance of installation or commissioning by a user of any item delivered;
(h) receipt of any report, manual, guide or other documentation required as a deliverable against a contract;
(i) completion of works or services required against a contract; and
(j) receipt of payment due to any subcontractor.
(3) A payment documentation from a contractor shall include an original invoice from the contractor certifying the payment due.
(1) A procuring entity shall be responsible for organising any payment to be made to a contractor within 30 days of the certification of a payment request.
(2) Except as otherwise provided in a tender document, the period of payment of a contract shall be within 30 days from the date of the certification of an invoice.
(3) A payment to a contractor shall, unless with the approval of an Accounting Officer, not be ceded.
116. Payment and payment delays
(1) A procuring entity shall ensure that any request for a payment of a contract is processed promptly within the payment period specified in the contract.
(2) A contractor shall submit an invoice to a procuring entity for payment in accordance with the terms of a contract.
(3) If an invoice referred to in subregulation (2) has an error or any discrepancy, is supported by incorrect or incomplete documentation or is in any other way not in accordance with the terms of a contract, the request shall not be certified as correct, and a payment shall not be made.
(4) An invoice which is not certified as correct shall, within five days of the date of receipt of the invoice, be returned to a contractor, detailing the reasons such invoice cannot be certified for payment.
(5) Where an invoice has been returned, a contractor shall be entitled to submit a new or amended payment invoice to a procuring entity, which shall be treated in the same manner as the original invoice.
(6) A delay in payment to a contractor shall attract interest at the rate to be determined by the Minister.
(7) Notwithstanding the provisions of subregulation (3), the querying by a procuring entity of any part of a payment invoice from a contractor shall not delay the payment of the unchallenged portion of the invoice to the contractor.
117. Currency of money used for payment and related limitations
(1) A bidding document shall state any limitation on a currency of money to be used in a bidding or the currency of money to be used for payment that may apply to a procurement process or resulting contract.
(2) Unless otherwise stated in a bidding document or contract, the currency of money to be used for bidding and payment of a contract shall be—
(a) Botswana Pula, for works, services and supplies; and
(b) a convertible currency for works, services or supplies originating outside Botswana.
118. Export and import licence responsibility
Unless otherwise provided by the terms of a delivery stated in a bidding document, a contract for a procurement requirement that involves an—
(a) export licence shall be the responsibility of a contractor to ensure the availability of the export licence, and a procuring entity shall provide any assistance necessary for the contractor to process any application for the export licence; and
(b) import licence shall be the responsibility of a contractor, and a procuring entity shall render any certification necessary to the contractor to process any application for the import licence.
(1) A procuring entity shall, where applicable, ensure that insurance or indemnity cover is arranged to cover each procurement requirement, and the appropriate provision shall be included in a bidding document and the resulting contract.
(2) Where applicable, insurance or indemnity cover shall be arranged with an insurance company registered in Botswana.
(1) A payment shall be made by a procuring entity in the currency stated in the contract.
(2) Where a payment to a contractor is to be made in Botswana, as may be provided in a contract, and the contractor is required to remit all or part of the payment outside Botswana, the contract amount in Botswana currency shall be paid to such contractor less or plus, as the case may be, an amount as specified on the contractor’s invoice representing any of the following exchange rate movement, any—
(a) fluctuation which may have occurred between the date of conversion to Botswana currency as reflected in a bidding package and bid, and a date of invoice:
Provided that the invoice date is not more than 10 days later than the date of the delivery or shipment; and
(b) further fluctuation in the exchange rate, which may occur between a date of invoice and the actual date of remittance outside Botswana:
Provided that such further fluctuation is more than 5 per cent, and the remittance is made within 10 days of the date of such contract or purchase order, as may be applicable.
(3) Any claim by a contractor for an exchange rate movement shall be accompanied by the following documentation—
(a) a copy of the relevant invoice;
(b) a copy of the bank remittance advice;
(c) a copy of the purchase order or contract;
(d) import documents stamped by the relevant competent authority; and
(e) any other information which may be reasonably requested by the contract manager.
(4) Failure by a contractor to provide the information referred to in subregulation (3) may delay or invalidate a claim.
(5) Where a contractor fails to comply with a requirement of a contract affecting the admissibility of the contractor’s claim, the cost of the exchange rate movement shall be borne by such contractor.
(1) A procuring entity shall, where applicable, require a contractor to submit a performance security or professional indemnity to guarantee the proper performance of a contract.
(2) Notwithstanding subregulation (1), the services or supplies from a micro, small and medium enterprise shall be exempt from the requirement of a performance security or professional indemnity to guarantee the proper performance of a contract.
(3) A procuring entity shall specify in a tender document any requirement with respect to an issuer and the nature, form, amount and other principal terms and conditions of the required performance security.
(4) A contractor shall, within a period provided in a tender document, after receipt of a notice of acceptance, furnish a procuring entity with a performance security in accordance with the terms of a contract and in the form provided in the tender document.
(5) A procuring entity may require a contractor to submit the performance security in any format provided by the Authority.
(6) A procuring entity shall, where an amendment of a contract after signature is necessary, and the amendment is effected, require a contractor to provide an additional performance security to cover any cumulative increase of more than 10 per cent of a price of the contract.
(7) A performance security shall be kept by a procuring entity until the completion of a contract and shall be released after the issuance of the certificate of acceptance of a final report or certificate of completion of works, services or supplies, if there is no claim filed against a contractor, contract guarantor or surety company.
PART XII
Ethics and Transparency in Public Procurement (regs 122-125)
(1) An Accounting Officer and an employee of a procuring entity shall disclose any direct or indirect interest in any company with which such the procuring entity proposes to deal with, and declare any other conflict of interest at any point during a procurement process in Form 0 set out in Schedule 1.
(2) An employee of a procuring entity who discloses any direct or indirect interest in a company referred to in subregulation (1) shall not take part in any consideration or discussion of, or vote on any issue relating to, a procurement involving the company, unless an Accounting Officer directs otherwise.
(3) A disclosure of interest under this regulation shall be recorded in the manner determined by the Authority.
(4) An employee of a procuring entity who, at any time before or during a procurement process, discovers that he or she has or may have a conflict of interest shall, in writing declare such interest and record the declaration in manner determined by the Authority.
(5) A declaration of direct or indirect interest by an Accounting Officer shall be referred to the Accounting Officer’s supervisor for direction on how to proceed.
123. Confidentiality relating to procurement process
(1) Any information relating to a procurement process shall not be disclosed to any bidder or person who is not involved in the procurement process unless such disclosure is required by law or court order.
(2) An employee of a procuring entity, a procurement agent or a procurement service provider, or any other resource person solicited to advise the procuring entity in a procurement process, who is likely to become aware of a proprietary and confidential information of a bidder and the bidder’s business shall sign and be bound by confidentiality in Form P set out in Schedule 1, and shall not disclose such information to any person other than an authorised person.
(3) A procuring entity shall not disclose any information which has been submitted to the procuring entity by a bidder, which the bidder has designated confidential, and which includes a technical or trade secret, and any confidential aspect of a tender.
(4) A procuring entity may impose on a bidder, a requirement to protect any confidential information which the procuring entity makes available to the bidder during a procurement process.
124. Declassification of information
(1) A bidder shall indicate in a bid, which information the bidder considers confidential and whose disclosure shall be prejudicial to the interest of the Government or the interest of a contractor or private party.
(2) Where a bidder fails to indicate which information is confidential in terms of subregulation (1), any information not indicated as such may be subject to declassification after two years following an award of a tender.
A procuring entity shall, for purposes of transparency, impartiality and fairness, in a system referred to in section 8(1)(f) of the Act, and by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish any—
(a) decision arising from a complaint and challenges dealt with by the procuring entity;
(b) record of a bid opening including any detail relating to the bid;
(c) any adjudication decision regarding a procurement activity except on procurement of highly sensitive works, services, supplies or any combination thereof, however classified; and
(d) any other decision or information as may be determined by the Authority.
PART XIII
Maintenance of Records by Procuring Entities (regs 126-130)
(1) A procuring entity shall keep and maintain, or cause to be kept and maintained, a procurement record which shall include—
(a) a request to initiate procurement proceedings;
(b) a copy of any published advertisement or shortlist;
(c) a pre-qualification and bidding document, and any amendment or clarification to the pre-qualification and bidding document;
(d) a record of a bid opening;
(e) a copy of a record of an evaluated bid and a response on any clarification requested;
(f) an evaluation report;
(g) a contract;
(h) any document related to a contract management, including contract payment and contract performance, warranty, bank guarantee and any claim;
(i) minutes of a meeting related to any procurement, including a negotiation;
(j) any correspondence between a procuring entity and a bidder;
(k) any submission to an Accounting Officer;
(l) any decision of an Accounting Officer related to a procurement, including—
(i) the choice of procurement procedure,
(ii) the approval of bidding documents,
(iii) the approval of evaluation reports,
(iv) the contract award,
(v) the approval of contract documents and contract amendments, and
(vi) any decision to suspend or cancel procurement proceeding;
(m) any other record relating to procurement.
(2) A record referred to in subregulation (1) shall be made available to any person authorised by an Accounting Officer to access the record or any part of such record.
(3) A person who wishes to make a copy of a record referred to in subregulation (1) shall, in writing, be authorised by an Accounting Officer to make the copy, and such copy shall be certified and indexed, and the original shall be retained by a procuring entity.
(4) A procuring entity shall keep and maintain a record of a procurement and contract management referred to under subregulation (1)(h) for at least five years from the date of a decision to terminate the contract or the date of expiration of the contract, except where there is a dispute relating to such contract in which case the record shall be kept for an additional year after the expiration of the contract or the settlement of the dispute, whichever comes later.
(5) An Accounting Officer shall not transfer an original copy of any record except by an order of court.
(1) A procuring entity shall keep and maintain a contract record which may include—
(a) the signed contract including any signed contract amendments;
(b) any variation issued under the contract;
(c) any post contract documentation relating to the fulfillment of an obligation under the contract, particularly any copy of a bank guarantee or advance payment guarantee;
(d) the minutes of any meeting related to the contract management, including technical progress meeting, progress of such contract or any review meeting;
(e) any document with proof of any delivery of supplies or completion certificate in relation to the contract for works or services;
(f) any copy of any invoice for works, services or supplies including any work paper verifying the accuracy of any payment claimed and any detail of the actual payment authorised by a contract manager;
(g) any copy of cumulative payment worksheet with proof of the management of any payment made;
(h) any copy of any claim made by a contracts manager on behalf of the procuring entity in respect of any warranty, non-warranty, short supply, damage and any other claim upon a supplier or upon the procuring entity;
(i) any correspondence between the procuring entity and contractor supervising consultant or engineer; and
(j) any submission and decision on any approval related to a contract management, including the authorisation of any contract amendment.
(2) Any contract record kept and maintained in terms of this regulation may be accessible to any person authorised by an Accounting Officer.
(3) An Accounting Officer shall not transfer an original copy of a contract record except by an order of court.
128. Requirement for reporting
A procuring entity shall, for every contract or framework contract submit a written report on an awarded tender to the Authority, in the manner to be determined by the Authority.
129. Safe keeping of documents
(1) An Accounting Officer shall, through a procurement unit, provide for the safe keeping of any procurement record of a procuring entity by ensuring that the procurement record is kept safe and secure, in accordance with an applicable record management guideline or policy.
(2) Any securities, negotiable document or any other financial instrument received by a procuring entity shall be deposited by the responsible employee of the procuring entity in a secure place for safe keeping as may be authorised by an Accounting Officer.
(3) Any copy of an original record or document referred to in subregulations (1) and (2) shall be kept in a procurement record by a procuring entity, annotated with information on the location of the original record or document and the date of receipt of the original record or document.
130. Access to documents relating to procurement
(1) Any person who wishes to access any document or database in terms of section 83(2) of the Act shall, on request, be given access to the document or database, upon payment of a fee provided by the Authority within 10 days of the submission of such request.
(2) A document or database referred to in subregulation (1) shall be made available in the manner to be determined by the Authority.
(3) Any other information or record relating to procurement which is not subject to section 83(2) of the Act shall be made accessible to an authorised person.
PART XIV
Procedure for Monitoring and Compliance by Authority (regs 131-133)
131. Procurement, contract and performance audits
(1) The Authority shall audit a procuring entity at any time and where the circumstance requires, select a project or contract of interest within the procuring entity for the audit, in accordance with a criteria to be determined by the Authority.
(2) The Authority shall, before conducting an audit referred to in subregulation (1), inform a procuring entity on its intention to audit the procuring entity, and on the objective, and the audit scope and audit criteria to be used for the audit, and provide other information as may be relevant for such purpose.
(3) A procuring entity shall, in order to enable the Authority to efficiently carry out an audit, make available any document or record required for the audit under this regulation in a timely manner.
(4) The Authority shall, upon completion of an audit and before issuing the final audit report, submit in writing to a procuring entity, its preliminary findings of the audit.
(5) A procuring entity shall submit a detailed response to the preliminary findings of an audit to the Authority within 14 days of receiving such findings.
(6) The Authority shall prepare a final report, taking into consideration the response from a procuring entity, if any.
(7) The Authority shall submit the audit report to a procuring entity and the Ministry responsible for finance, together with a recommendation of the Authority if any.
(8) The Authority shall make audit report available to and accessible by the public upon payment of a fee set out in Schedule 2.
132. Reporting to Authority by procuring entities
A procuring entity shall submit a report to the Authority in the manner to be determined by the Authority, on the following—
(a) an annual procurement plan;
(b) a procurement plan adherence;
(c) an awarded contract and implementation of the contract;
(d) the implementation of a reservation and preference scheme;
(e) any complaint heard and the results from the hearing of such complaint;
(f) an end of activity report;
(g) any retroactive approval; or
(h) any other report as required by the Authority.
(1) The Authority shall prepare a statistic on any contract signed by a procuring entity, in order to understand the status of public procurement and formulate and implement effective procurement policy.
(2) The Authority shall provide for the manner of reporting and request a procuring entity to provide information necessary to prepare statistic on any contract.
(3) A procuring entity shall, upon receipt of a request to provide an information on a statistic referred to in subregulation (2), submit the information within 14 days of the request.
(4) A procurement oversight unit shall, in the manner to be determined by the Authority, prepare a report on any tender awarded by a procuring entity and submit the report to an Accounting Officer.
(5) The report referred to under subregulation (4) shall include information on whether the provisions of the Act have been complied with.
(6) An Accounting Officer shall, upon receipt of a report in terms of subregulation (4), submit a copy of the report to the Authority within 14 days of such receipt.
(7) The Authority may, upon receipt of a report under this regulation, if the Authority considers it necessary, request an Accounting Officer to submit a report or any other relevant information on any procurement implemented in contravention of the Act, within 14 days after such receipt, for review and necessary action.
(8) A report referred to under subregulation (7) shall be in the manner determined by the Authority.
PART XV
Procedure for Investigations by Authority (regs 134-136)
(1) The Authority may undertake an investigation of a procurement activity on the basis of the following—
(a) information from a report, audit finding and inspection under these Regulations;
(b) referral of any matter by a Public Oversight Agency; or
(c) any other information received by the Authority.
(2) Subject to the provisions of the Act, the Authority may request any employee of a public body or any other person, who, in its opinion, is able to assist in an investigation of any matter, to furnish information and produce any document under his or her control, and the information shall be submitted to the Authority within seven days from the date of the receipt of the request.
(3) The Authority shall, after conducting an investigation, produce a written report which shall include a finding of the investigation and a directive.
(4) The Authority shall submit a report referred to in subregulation (3) to an Accounting Officer and the Accounting Officer shall respond in writing to a directive on the report within 14 days from the date of the receipt of the directive, indicating any action to be taken and shall, in addition, prepare and submit to the Authority a report on the implementation status within three months from the date of receiving such directive.
135. Co-operation with Public Oversight Agencies
(1) The Authority may, during, or after conducting, an investigation, cooperate with a Public Oversight Agency or any other authority responsible for public oversight, and establish a mechanism for the sharing of any information relating to the investigation.
(2) Where a Public Oversight Agency carries out an investigation, the Public Oversight Agency shall corporate with the Authority and share any information relating to the investigation with the Authority using a mechanism referred to in subregulation (1).
136. Delegation of functions and powers of Authority
(1) The instrument of delegation provided under section 11(3)(a) of the Act shall state—
(a) the delegated functions or powers;
(b) the person to whom the delegation is made;
(c) the date of commencement of the delegation;
(d) the duration of the delegation, which may be a specified period of time or an unspecified period of time;
(e) the limitations or exceptions to the delegation, if any; the requirements for reporting on the execution of the delegated functions or powers; and
(f) that the delegation may, by written notice of the Authority, be revoked at any time.
(2) A person who wishes to appeal to the Authority against a decision made under a delegated function or power shall, within 14 days from the date of the communication of the decision, submit a written appeal to the Tribunal.
PART XVI
Registration of Contractors (regs 137-155)
(1) The Authority shall enter in the Contractors’ Register, in respect of each contractor—
(a) the name and qualification of a director or partner, key staff or employee who is technically qualified or experienced in the relevant category, where applicable;
(b) in the case of an individual, his or her qualification, skill or experience;
(c) duration of the registration;
(d) type of the registration; and
(e) any other particulars which the Authority may, from time to time, direct.
(2) A member of the public shall, in terms section 91(2) of the Act, pay a fee set out in Schedule 2 to access the Contractors’ Register.
(3) A contractor shall submit particulars of change of the contractor’s registration in Form Q set out in Schedule 1 to the Authority.
(4) A contractor who fails to submit particulars referred to in subregulation (1) shall pay a penalty fee of P5 000 to the Authority.
138. Registration requirements
A contractor who wishes to be listed in the Contractors’ Register shall be eligible for registration if the contractor meets the minimum registration requirement in respect of a class or category of registration as may be issued by the Authority, or any other requirement that the Authority may provide.
139. Application for registration
(1) A contractor may apply to the Authority in Form R set out in Schedule 1, upon payment of a fee set out in Schedule 2.
(2) An application referred to in subregulation (1) shall be accompanied by—
(a) a certified copy of a certificate and any other relevant document relating to the qualification of a contractor for registration;
(b) information proving that a contractor is a holder of the minimum technical qualification, skill and experience required by the Authority for the class of contract works, services or supplies in respect of the registration sought;
(c) information on whether a contractor meets a requirement for the category of works, services or supplies for which the registration is sought; and
(d) any other information that the Authority may require from time to time.
(3) An application for registration shall not be considered as duly completed for purposes of the Act unless information required by the Authority is submitted to the Authority by a contractor, an adjudication has been made on the application, and a certificate issued.
140. Inspection of contractor’s business
The Authority may, after receipt of an application for registration from a contractor, inspect the contractor’s business.
(1) The Authority shall, after an inspection referred to under regulation 140 prepare an inspection report.
(2) An inspection report under this regulation shall include the findings from the inspection in respect of the operations of a contractor’s business relating to the application for registration in the Contractors’ Register.
142. Consideration of application for registration
The Authority shall consider an application by a contractor to be registered in the Contractors’ Register and make its decision within a timeline determined by the Authority from the date of the receipt of the application, and such consideration may be in relation to—
(a) an approval of such application which meets a requirement for registration;
(b) a rejection of such application;
(c) the returning of such application where the application is incomplete or it does not comply with a requirement for registration; or
(d) a refusal to register a contractor—
(i) if an applicant has been convicted of an offence under the Act,
(ii) if it is in the public interest to do so, or
(iii) for any other reason as may be determined from time to time by the Authority.
143. Certificate of registration
(1) A certificate of registration issued in terms of section 92(3)(b) of the Act shall contain details as may be provided by the Authority from time to time.
(2) A certificate of registration under this regulation may be issued electronically.
144. Refusal to register contractors
(1) Notwithstanding regulation 142(d), the Authority may not register a contractor if in the opinion of the Authority the—
(a) contractor does not meet a requirement for registration in the Contractors’ Register; or
(b) contractor presents false information to the Authority.
(2) The Authority shall give a contractor an opportunity to be heard before the Authority makes its decision in terms of subregulation (1).
(3) The Authority shall, where it does not register a contractor under this regulation, communicate its decision, in writing, to the contractor within seven days of the date of such decision and shall state the reasons for such refusal.
145. Application for upgrading or downgrading
(1) A contractor may apply to the Authority for the upgrade of the contractor in Form S, or for the downgrade of the contractor in Form T, set out in Schedule 1, upon payment of a fee set out in Schedule 2.
(2) The Authority shall, within 21 days after receipt of an application referred to in subregulation (1), process the application and inform the contractor of its decision.
146. Upgrading or downgrading of contractors
(1) The Authority may, in its decision referred to in regulation 145(2) upgrade or downgrade a contractor and issue the contractor with a higher grade or lower grade where applicable.
(2) The Authority shall, where it intends to upgrade or downgrade a contractor, give such contractor a 14 days’ notice within which the contractor shall furnish reasons to not be upgraded or downgraded.
(3) The Authority shall, after the period referred to in subregulation (2), consider the reasons furnished by a contractor and make a decision.
(4) The Authority shall, where a contractor fails to respond in terms of subregulation (2)—
(a) proceed to upgrade or downgrade the contractor;
(b) inform such contractor in writing; and
(c) enter the new grade and code in the Contractors’ Register.
147. Non-registration of citizen contractors in micro procurement
A procuring entity shall, with the written approval of the Authority, engage a contractor who is not registered to participate in procurement a process except a procurement process relating to—
(a) micro procurement;
(b) informal sector;
(c) international bidding for bidders not domiciled in Botswana; or
(d) a Government policy,
as the Authority may determine.
(1) A contractor that is registered in the Contractors’ Register shall comply with any grading guideline or rule issued by the Authority from time to time with respect to works, services or supplies.
(2) The Authority may limit the participation of a contractor to a grade under which the contractor is registered in order to—
(a) achieve a fair and equitable distribution of procurement activities; or
(b) promote the participation of a citizen in procurement.
(3) A contractor shall be allowed to register only one company per subcode at a specific grade.
149. Removal from Contractors’ Register
(1) The Authority may at any time direct that the name of a contractor be removed from the Contractors’ Register where the contractor—
(a) requests that the contractor’s name be removed from the Contractors’ Register, subject to the approval by the Authority;
(b) fails to pay an annual subscription fee for two consecutive years;
(c) no longer meets the registration criteria;
(d) fails to comply with the Authority’s terms and conditions for his approval;
(e) has obtained registration by fraud or misrepresentation;
(f) is a member of a professional body specified by law and the membership has been suspended or cancelled by a professional body;
(g) has acted in contravention of the code of conduct set out in Schedule 3;
(h) has been convicted of an offence, whether in Botswana or another jurisdiction—
(i) in respect of which a sentence of imprisonment without an option of a fine may be imposed, or
(ii) involving dishonesty; or
(i) is deceased.
(2) The Authority shall not vary, amend or withdraw a registration of a contractor in the Contractors’ Register unless the Authority has—
(a) afforded the contractor an opportunity to furnish reasons why the registration should not be varied, amended or withdrawn; and
(b) informed the contractor of its intention to vary, amend or withdraw the registration.
(3) Except in the circumstances specified in subsections (1)(a) and (2), the Authority shall inform a contractor of the removal of the name of the contractor from the Contractors’ Register by a recorded delivery or a registered letter to the address appearing in the Contractors’ Register against such contractor’s name immediately before such removal.
(4) A contractor whose name has been removed from the Contractors’ Register under this regulation shall, with effect from the date of the removal, cease to be registered for the purpose of the Act, and shall be obliged to immediately surrender to the Authority the certificate of registration for cancellation.
(5) Where a contractor has been de-listed from the Contractors’ Register, the contractor shall not be re-registered under any other name.
150. Restoration to Contractors’ Register
(1) A contractor whose name has been removed from the Contractors’ Register may apply to the Authority in Form U set out in Schedule 1, and upon payment of a fee set out in Schedule 2, for the restoration of the contractor’s name in the Contractors’ Register.
(2) An application referred to in subregulation (1) shall be accompanied by—
(a) proof that a contractor has complied with the registration requirements under the Act; and
(b) a payment of arrears relating to the registration in the Contractors’ Register, if any.
(3) The Authority may restore a contractor to the grade and code to which the contractor was previously registered under if such contractor satisfies the Authority that the contractor meets the requirements for re-registration in terms of subregulation (2).
151. Updating and correction of registration system
The Authority may interface its registration system with any other platform provided by a competent authority to ensure that any change on information relating to a contractor is updated in accordance with the latest development.
(1) A fee for the registration of a contractor in the Contractors’ Register shall be—
(a) as set out in Schedule 2; and
(b) paid by the registered contractor according to such contractor’s grade and code.
(2) A fee for the registration of a contractor in the Contractors’ Register shall be due on the notification of the registration or re-registration and shall be payable to the Authority.
A subscription fee for a registered contractor—
(a) shall be determined by the Authority;
(b) may be reviewed annually by the Authority; and
(c) shall be paid by the registered contractor to the Authority according to such contractor’s grade or code.
A contractor shall, in terms of section 97 of the Act, apply for the renewal of a certificate of registration in Form V set out in Schedule 1 upon payment of a fee set out in Schedule 2.
155. Appeal of decision of Authority to not register contractors
A contractor who is aggrieved by the decision of the Authority to, refuse to register the contractor, remove the contractor’s name from, or any other decision relating to the registration of such contractor in, the Contractors’ Register, may, in writing, appeal to the Tribunal within 14 days from the date of the decision and submit any document or information that may be relevant to the appeal.
PART XVII
Suspension and De-listing of Contractors (regs 156-170)
156. Suspension and de-listing committee
(1) The Authority shall establish a suspension and de-listing committee.
(2) The functions of the suspension and de-listing committee shall be to investigate whether a contractor complies with the code of conduct or terms of a contract.
(3) The suspension and de-listing committee shall consist of seven members appointed by the Authority.
(4) The Authority shall, by Notice in the Gazette, publish the appointment of the members of the suspension and de-listing committee, specifying the dates of their appointment and the period for which they are appointed to the suspension and de-listing committee.
157. Operations of suspension and de-listing committee
(1) Notwithstanding the generality of regulation 156(2), the suspension and de-listing committee shall, upon receipt of a complaint submitted to it by the Authority—
(a) investigate the complaint by making reference to a—
(i) code of conduct set out in Schedule 3, or terms and conditions of a contract, and
(ii) procuring entity concerned and its records and decision relating to such compliant, if any;
(b) where necessary, seek the advice of any person with expertise related to such complaint;
(c) establish whether the conduct of a contractor is consistent with set practices of contractors in a similar field; and
(d) conduct such further investigation as may be necessary to make an informed determination on such complaint.
(2) The suspension and de-listing committee may, at any stage of an investigation, hold a hearing with a contractor that is under investigation.
(3) The suspension and de-listing committee may summon any witness to appear before the committee to give evidence during an investigation.
(4) A contractor may bring its own witness to a hearing referred to in subregulation (3) and shall provide the suspension and de-listing committee with a list of the contractor’s witnesses, if any, no later than five days before the date of the hearing.
(5) The suspension and de-listing committee shall, in writing, before a hearing under this regulation, furnish a contractor with the particulars of the complaint made against the contractor.
(6) The suspension and de-listing committee shall give a contractor an opportunity to reply to a complaint in terms of this regulation not later than five days after receipt of a notice to reply.
(7) The suspension and de-listing committee shall, after it has concluded an investigation and a hearing, and has made a determination, submit a recommendation on the complaint to the Authority within 10 days.
(8) A contractor required to appear before the suspension and de-listing committee shall appear in person.
158. Tenure of office of members of suspension and de-listing committee
A member of the suspension and de-listing committee shall be appointed for a period not exceeding four years on such terms and conditions as may be specified in the instrument of appointment shall be eligible for re-appointment for one further term not exceeding four years.
159. Meetings of suspension and de-listing committee
The suspension and de-listing committee shall regulate its own proceedings in conducting its business.
160. Grounds and sanctions for suspension, de-listing or debarring of contractors
A procuring entity may recommend to the Authority, the suspension, de-listing or debarring of a contractor—
(a) where the contractor contravenes the code of conduct set out in Schedule 3;
(b) where the contractor does not comply with the terms of a contract; or
(c) where the conduct of the contractor is not consistent with set practices.
161. Investigation into conduct of contractors
(1) The Authority may, on its own volition or upon receipt of a written allegation made by or on behalf of any person alleging a misconduct by a contractor, institute an investigation into the conduct of the contractor.
(2) The Authority may conduct an investigation in terms of subregulation (1) or refer it to a competent authority.
(3) The Authority shall, upon receipt of a written allegation against a contractor, by notice to the contractor, inform and give such contractor the grounds of the allegation.
162. Submission of allegations to Authority
(1) Any person may, in Form W set out in Schedule 1, submit an allegation on any conduct of contractor which contravenes the code of conduct set out in Schedule 3 or the terms of the contract to the Authority within 14 days of becoming aware of such conduct.
(2) A conduct of a contractor which contravenes the code of conduct, referred to in subregulation (1) shall arise from circumstances relating to the execution of the contract by the contractor.
(3) A person referred in subregulation (1) shall substantiate his or her allegation of under this regulation to the satisfaction of the Authority.
(4) The Authority shall, upon receipt of an allegation under this regulation, submit the allegation to the suspension and de-listing committee to be investigated.
163. Process of investigations on conduct of contractors
(1) The Authority may, in exercising its powers and functions to investigate in terms of the Act, require a person to produce information, a document or any evidence concerning an investigation to determine any possible ground for the contravention of the provisions of the Act by a contractor.
(2) A person required to produce information, a document or evidence under this regulation shall submit the information, document or evidence within 10 days from the date of receiving the request.
(3) The Authority may request a contractor against whom an allegation is made or who is being investigated, under these Regulations, to furnish the Authority, within a period specified by the Authority, an explanatory response to the allegation which shall be verified by an affidavit.
(4) The Authority may—
(a) summon before it or before a unit that the Authority may designate for purposes of an investigation under this regulation, a contractor against whom an allegation is made or whose conduct may appear to the Authority to require an investigation;
(b) call upon a contractor referred to in paragraph (a) to produce any document, contract, book, paper, specification, quantities or other writing in such contractor’s control, relating to the complaint under investigation; and
(c) hear any evidence and inspect any document which the Authority or a contractor may desire to present.
(5) A contractor against whom an allegation is made in terms of these Regulations shall have the right to appear before the Authority and to be heard personally, and may call such evidence and produce such documents as may be relevant.
(6) A contractor who has been summoned in terms of this regulation commits an offence if the contractor fails without sufficient cause to—
(a) appear before the Authority;
(b) answer fully and satisfactorily to the best of such contractor’s knowledge any question put to the contractor by the Authority; or
(c) to produce any documents in possession, or under the control, of such contractor, required by the Authority to be produced.
164. Investigation officers of Authority
(1) The Authority may, in conducting an investigation under the Act, as it may consider it necessary, appoint a person to be an investigation officer of the Authority, for purposes of carrying out the investigation.
(2) An investigation officer appointed as such under subregulation (1) shall, for the purpose of ascertaining whether the provisions of the Act are being complied with, have power at all reasonable times to enter into contractor’s business premises, any site where construction works or services are being carried out, or any other location deemed relevant to the investigation, and make such enquiry or inspection as may be necessary for the purposes of an investigation.
(3) An investigation officer may, in the course of an investigation under these Regulations—
(a) require information concerning the registration of a contractor, accreditation and certification of a construction worker and supervisor engaged by a contractor, or information regarding the payment of a levy, and any person required to give the information shall do so truthfully;
(b) require any person to produce any records required to be kept under this Act, and may make a copy of such records; or
(c) by notice in writing order the suspension of all or any part of the works in respect of which the provisions of the Act have not been complied with until the date of such compliance.
(4) An investigation officer shall, when exercising powers and functions under the Act, identify himself or herself by producing a written authorisation to exercise such powers and functions.
(5) An investigation officer shall, upon completion of an investigation, submit a written report with a recommendation to the Authority on an action to be taken.
(1) The Authority shall, on receipt of a recommendation of an investigation officer under regulation 164(5), make a decision and immediately, by a written notice, communicate its decision to a contractor, shareholder, director or key staff which may—
(a) impose any of the following orders, or combination thereof, against the contractor—
(i) caution or reprimand such contractor in writing,
(ii) suspend such contractor for a specified period of time from participating in a procurement process,
(iii) suspend such contractor conditionally on any terms, pending the fulfilment by the contractor of the conditions of suspension,
(iv) issue a remedial order, where such contractor is ordered to comply with a remedial measure within a specified time, failing which the contractor shall be suspended for a specified period of time from participating in a procurement process, or
(v) de-list and remove the contractor from the Contractors’ Register; or
(b) dismiss the complaint.
(2) The Authority shall, from time to time issue the duration of suspension and de-listing under this regulation.
(3) Where the Authority has suspended or de-listed a contractor in terms of section 100 of the Act, the—
(a) Authority shall revoke the certificate of registration issued under these Regulations, by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish the suspension or de-listing indicating the duration of such suspension or de-listing;
(b) Authority shall, in writing, inform a procuring entity that the contractor has been suspended or de-listed; and
(c) contractor shall, where applicable, within seven days of receipt of a decision of the Authority in terms of this regulation, submit to the Authority, the certificate of registration.
(4) The Authority may, after making its decision under these Regulations, require a contractor to compensate a procuring entity of any proceeds or any other benefits received by the contractor relating to a contract with the procuring entity, which proceeds or benefit such contractor is not entitled to.
(5) The decision of the Authority under this regulation shall be made within 30 days of receipt of a recommendation of the suspension and de-listing committee.
166. Suspended or de-listed contractors
A contractor that has been suspended or de-listed in terms of the provisions of the Act shall remain liable to fulfil the contractor’s obligations under any contract they entered into with a procuring entity before they were suspended or de-listed except where fraud or corruption is established.
167. Termination of de-listed contractors
(1) A procuring entity may, with the approval of the Authority, where a contractor has been de-listed and removed from the Contractors’ Register in terms of the provisions of the Act, terminate, or continue with, a contract entered into with the contractor.
(2) The Authority shall, in writing, inform a procuring entity of a decision referred to suspend or de-list a contractor and direct the procuring entity to terminate a contract.
168. Register of suspended or de-listed contractors
(1) The Authority shall keep and maintain a register of any suspended or de-listed contractors, which shall be available for access by the public.
(2) The Authority shall upon the suspension or de-listing of a contractor enter the name and particulars of the contractor, including a shareholder, director and key staff, in the register referred to in subregulation (1), for a period to be determined by the Authority.
169. Reinstatement of contractors
(1) The Authority shall, upon the lapse of a suspension or de-listing period remove a contractor from the register of suspended or de-listed contractors.
(2) A de-listed contractor may, where a period of de-listing lapses, apply in Form Y set out in Schedule 1, for the contractor to be removed from the register of suspended or de-listed contractor.
(3) The Authority shall remove a contractor from the register of suspended or de-listed contractors within 15 days of the application referred to in subregulation (2), unless the Authority is satisfied that the contractor has not complied with any terms and conditions for restoration in the Contractors’ Register in terms of these Regulations.
170. Appeal against decision to suspend or de-list
(1) A contractor who is aggrieved by a decision of the Authority to suspend or de-list the contractor may, within 14 days of the date of the decision, appeal against such decision to the Tribunal.
(2) A contractor may apply for a stay of a decision of the Authority referred to in subregulation (1) simultaneously with an appeal.
PART XVIII
Procedure for Lodging of Complaints and Appeals (regs 171-179)
171. Procedure for lodging of complaints
(1) A contractor aggrieved in terms of section 104 (2) may submit to an Accounting Officer, a complaint in Form Z set out in Schedule 1.
(2) An Accounting Officer shall, within five days after receipt of a complaint referred to in subregulation (1), notify any other contractor participating in a procurement process to which the complaint relates, of such complaint and the grounds of the complaint.
(3) Any contractor whose interest is or could be affected by the review proceedings under this regulation shall have the right to participate in such review proceedings.
172. Suspension of procurement process
(1) Where an Accounting Officer has suspended a procurement process in terms of section 107 of the Act, the Accounting Officer shall—
(a) notify the complainant and any other contractor participating in the procurement process related to the complaint, pending the consideration of such complaint by the Accounting Officer; and
(b) suspend the procurement process for a period not exceeding 20 days.
(2) Where the suspension in terms subregulation (1) exceeds 20 days, the complainant may refer the complaint to the Tribunal.
173. Consideration of complaints
(1) An Accounting Officer shall, in considering a complaint, examine or assess the—
(a) evidence including the information provided by the complainant; and
(b) information in the records kept by a procuring entity related to the complaint.
(2) Where two or more contractors from the same tender or procurement process lodge complaints, an Accounting Officer may consider the complaints simultaneously and respond to the respective contractors.
(3) A complainant shall, in terms of section 104(3) of the Act, participate in the review proceedings in person.
(4) The law relating to admissibility of evidence shall not apply to review proceedings under these Regulations.
(5) An Accounting Officer may engage an expert to assist the Accounting Officer in the review proceedings, where applicable, and the opinion of the expert shall not be binding on such Accounting Officer.
(1) A bidder shall have the right to a fair hearing in review proceedings under these Regulations.
(2) Where the decision of an Accounting Officer is likely to result in the revocation of an award, or cancellation or re-evaluation of a tender, the Accounting Officer shall invite a bidder to a hearing and such Accounting Officer shall inform the bidder of any observation made and the possibility of an error, if any, in the awarding of a tender.
(3) An Accounting Officer shall give a bidder a period of not more than three days after the review proceedings, to submit a response on the findings of the Accounting Officer and to show cause why, an award should not be revoked, or a tender cancelled or re-evaluated, or why any other justifiable decision should not be made.
175. Decisions of Accounting Officer
(1) An Accounting Officer shall, within 20 days after the review proceedings, make a written decision with respect to a complaint which shall indicate—
(a) whether the complaint is upheld in whole or in part, or is rejected or dismissed;
(b) the reasons or grounds for the decision; and
(c) any corrective measure that may be taken.
(2) An Accounting Officer shall, after the period referred to in subregulation (1), submit a decision to the complainant and any other contractor participating or who participated in a procurement process related to the review proceedings.
(3) A decision of an Accounting Officer shall be binding on the complainant and any other contractor participating or who participated in a procurement process related to the review proceedings.
176. Remedies by Accounting Officer
(1) An Accounting Officer shall, in determining the appropriate relief, consider all circumstances affecting the procurement process relating to the review proceedings.
(2) An Accounting Officer may—
(a) annul in whole or in part the act complained of;
(b) forward the complaint to a procurement oversight unit or order a re-evaluation of a procurement process or tender, or any other relevant remedy; or
(c) order that the procurement process related to the review proceedings be terminated.
177. Appointment of independent review panel
(1) An Accounting Officer shall, before appointing the members of an independent review panel in terms of section 110, ensure that such members are not involved in the procurement process related to the review proceedings.
(2) In appointing the members of an independent review panel, an Accounting Officer shall, in relation to a procurement process related to the review proceedings, take into account the relevant or appropriate qualifications and experience of such members.
(3) Where an Accounting Officer has appointed an independent review panel, the independent review panel shall review a complaint and advise the Accounting Officer on the relevant action to be taken within a period not exceeding 10 days from the date of receipt of the complaint.
178. Disclosure of interest and confidentiality by members of independent review panel
(1) Regulations 122 and 123 shall, with the necessary modifications, apply to the members of an independent review panel.
(2) A disclosure of interest by members of an independent review panel shall form part of a record of the review proceedings by the independent review panel.
(1) A complainant may, by notice in writing to an Accounting Officer, withdraw a complaint at any time before a decision on the complaint is made.
(2) An Accounting Officer may, upon receipt of a notice referred to in subregulation (1), deem the complaint to be withdrawn.
(3) Where a complaint is withdrawn, an Accounting Officer shall immediately inform the complainant and any other contractor participating in the procurement process related to the withdrawn complaint.
(4) An Accounting Officer may, where the withdrawal of a complaint relates to a suspended procurement process, lift the suspension of the procurement process.
(5) A withdrawal of a complaint shall not be conditional.
PART XIX
Fees (reg 180)
(1) There shall be payable to the Authority such fees for its services as the Authority may, with the approval of the Board, determine from time to time.
(2) The Authority shall by Notice in the Gazette, in a newspaper of national circulation, electronic media or Government portal, publish fees for any service rendered by the Authority.
(3) A fee paid for any assessment shall not be refundable.
Form A
(reg. 8(3))
Evaluation Report
Procuring entity’s name: ………………………………………………………………………………
Evaluation of tender no.: ……………………………………………………………………………….
Short title of what is being procured: ……………………………………………………………….
Scope of tender: ………………………………………………………………………………………..
This tender covers the design, supply, installation and commissioning/the purchase of ………………………….. the appointment of Consultant for ……………………..
a. Method of procurement (capture as per invitation to tender)
A formal open tender invitation was advertised in the local press and or international press; or
This was a selective/single sourcing tender restricted to suppliers/contractors/consultants
approved by the Accounting Officer/his or her representative on (date) ……………………………..
The pre-qualified consultant/suppliers/contractors are:
1. …………………………………………………………….
2. …………………………………………………………….
b. Tender closing date and bid validity
The closing date for submission of bid proposals was …………………………….. The tender validity period was …………………………….. from the closing date of the tender and therefore the bids expires on ……………………………..
c. Brief background
Give a short synopsis of the circumstances leading up to the purchase/construction, or appointment of consultant, or provision of service and the reason for the purchase.
This paragraph should convey to the reader the necessity for the purchase and benefits to the procuring entity (PE) arising from the procurement action. Wherever applicable a cost benefit analysis is to be included. At the very least the benefits to the PE should be detailed.
The constitution of the evaluation committee should be stated here. At least three officers should evaluate the tender in line with the Public Procurement Regulations.
d. Tenders received
Here should follow a summary of all tender proposals received. This may be stated in a few lines, under paragraph headings, or summarised in a table such as the example below. The choice of presentation lies with the author and it depends on the method of submission of tender responses. Bid Opening Forms should be appended appropriately.
The choice of format will depend on that which is necessary to achieve clarity, and in order to create a neat presentation.
e. Summary of Tendered Prices
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Tender No. |
Contractor/Supplier/ Consultant |
Tendered Price (PULA) |
Completion /Delivery Time (WEEKS) |
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f. Evaluation criteria as per ITT
A summary of the evaluation criteria as per the RFQ/ITT should be stated. An ITT or sections of it can be annexed to the evaluation report.
In this section a short paragraph explaining the evaluation process should be covered and the ITT/Evaluation Criteria attached to the report for further details where necessary.
g. Tender evaluation
Procedure: The number of those in the evaluation committee and their positions and names should be stated.
Results: A short synopsis of the evaluation of the quotations or tenders detailing the process followed as per the criteria in the ITT/RFQ, including factors considered, price comparisons, cut-off points, financial vs. technical weighting, criteria for compliance check etc., and the reasons for the selection of the recommended supplier(s). The evaluation should clearly detail the findings under each stage of evaluation as set in the ITT as follows:
Compliance Check
The basis of disqualification of each bidder should be stated and all those proceeding to the next stage of assessment indicated.
Technical Evaluation
The scores from each evaluator should be stated, summed and averaged as the ITT dictates. A summary of comments on each bidder should be done.
Financial Evaluation
In this section the tenders should be brought to a common base in Pula (where appropriate), and the rates of exchange used, the date and source are to be indicated. Rates used should be as per the requirement of the ITT. Tendered rates subject to foreign exchange adjustment should be adjusted to the rates prevailing at the time of tendering. Where applicable a comparison should be made with previous price(s) paid and comment made on whether the prices/price increases are considered fair and reasonable. In this section the evaluators should adjust tender prices where applicable applying price preferencing for purposes of comparison. Any arithmetical errors should be stated and the position taken.
Individual comments for each bidder should be consolidated into strengths and weaknesses of the bidder which constitute the findings of the evaluation Committee in addition to the scoring, Individual score sheets with annotations should be appended.
Conclusions: should be drawn which will lead up to the recommendation. In some instances it may be preferable to have the ANALYSIS and CONCLUSIONS under separate headings depending on the method of evaluation and what is procured. The basis of the recommendation should be in line with that under the ITT.
The report shall contain a statement of any disagreement and the reasons thereof further discussions held on the issue and the names of those holding alternative views. Where members of the Evaluation Committee disagree on the results of an evaluation, the findings and recommendations of the majority shall be stated in the evaluation report.
h. Recommendations
The recommendation will be similar to this:
It is recommended that the Accounting Officer make a decision (approve/reject/stand down/defer/etc.)
i. the opening of financial proposals from:
XYZ at a score of
ABC at a score of
DQL at a score of
As the bidders have met the cut-off point of …………………………….. as stipulated in the ITT.
ii. The return of unopened financial proposals from companies XYZ as they failed to meet the cut-off point by scoring below; or
iii. It is recommended that the Accounting Officer approve:
– the award of a contract for the supply/provision/construction of ……………………… to XYZ Company who submitted the lowest, technically acceptable tender or who scored the highest, at a total cost of P …………………. inclusive of ……………… taxes with a construction/delivery period of ……………………… weeks.
– The allocation of plots ……………………… measuring ……………………… for sale/lease on a ………………. year Fixed Period State Grant/lease at a purchase price/rental of …………………….. per annum to …………………….. who scores the highest.
“RECOMMENDATIONS should reflect the VALVE OF TENDER, RECOMMENDED TENDERER and DURATION OF DELIVERY OF THE WORKS/SERVICES/SUPPLIES.
i. Observations or opportunities for improvement
The report may contain general comments/observations that may be used for future improvements.
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Evaluator’s name |
Signature |
Date |
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Secretary’s name |
Signature |
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The evaluation report shall be signed by all members of the Evaluation Committee in attendance and so are the score sheets.
Here should be listed the Annexure to your report so that the Adjudicator knows where to look for them further information such as:
Annexure A; ITT
Annexure B: Bids/Proposals
Annexure C: Bid Opening Forms
Annexure D: Evaluation Minutes and Individual Annotated Score sheets
Annexure E: Funds Approval Form
Annexure F: Declaration of Interest Form
Annexure G: Confidentiality Form
Annexure H: Integrity Agreement Form
Annexure I: Certificate of Availability of Funds
These annexure should be properly referred to in the body of the report.
Form B
(reg. 31(2)(a))
List of Restricted Items
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S/No. |
Item |
Unit |
Procurement method |
Justification for use of classified procurement method |
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Name of procuring entity: ……………………………………………………………………………………………
Name of the Accounting Officer: …………………………………………………………………………………..
Sign: ………………………………………………………… Date: ………………………………………………….
Agreement by the Authority (Name): ……………………………………………………………………………..
Sign: ……………………………………………………..
Date: ……………………………………………………..
Form C
(reg. 31(2))
**Dates provided on the Procurement Plan are subject to review by the Procuring Entity
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Discipline |
Project Description |
Budget Amount BWP |
Estimated Cost BWP |
Method of procurement |
Preparation of ITT (incl. TORs & market research) |
Submission of ITT to POU for Vetting |
Date of intended publication of tender (where applicable) |
Issuing of invitation to tender |
Closing date for tenders |
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Supplies |
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Works |
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Evaluation of tender by Evaluation Committee |
Verification of Evaluation report by PU |
Submission of evaluation report to POU |
Pre-Adjudication by POU |
Award Decision by AO |
Cooling Off and Debriefing |
Contract Signing |
Commencement of project implementation |
Completion of project implementation |
End of Activity report |
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Form D
(reg. 37(1))
Procurement Requisition Form
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Name of procuring entity: |
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Name of user Department |
Budget year and date |
Sequence number |
Open commitment and control record |
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To Division |
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To Finance and Development Planning |
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Statement of procurement requirement |
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Item No. |
Description |
Quantity required |
Unit of measurement |
Estimated unit cost |
Estimated total cost |
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Funds Availability:
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Vote/Head No. |
Account |
Cost centre |
Project number |
Source of funds |
Balance remaining |
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Signatures are required below to certify that—
(a) the works, services or supplies described above are required and that the statement of requirements is accurate;
(b) approval is granted to proceed with the procurement; and
(c) funds are available or budgeted for the requirement.
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(1) Initiating Officer (user Department) |
(2) Confirmation of Funding (Head of Finance/ Planning) |
(3) Approval to Procure (Accounting Officer/ Delegated authority) |
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Comment: ……………………………………. ………………………………………… |
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Signature: ……………………………………. ………………………………………… |
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Name: ………………………………………… ………………………………………… |
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Position: ……………………………………… ………………………………………… |
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Date: ………………………………………….. ………………………………………… |
Form E
(reg. 39(1))
Availability of Funds
1. I ……………………………………………………………………………………………. the Accounting Officer for the …………………………………………………………………… (procuring entity) do hereby certify that funds amounting to (Currency & Amount) …………………………………………………………………… (amount in words ………………………………………………………………………) required for the procurement activity stated in paragraph 3 below are available by virtue of having been provided for in the:
1.1 Approved budget for the financial year ………………………. /……………………….;
1.2 Confirmation of availability of funds: YES/NO; or
1.3 Confirmation of availability of funds in Future (where there are no/insufficient/additional funds): Date ………………………
2. Type of source of funds: recurrent/development/donation/public private partnerships (delete what is not applicable) as evidenced by the attached statement of the Accounting Officer.
3. Description of procurement: ……………………………………………………………………………………………
………………………………………………………………………………………………………………………………..
4. The above stated funds are available to finance the procurement of works/services/supplies (delete what is not applicable) whose purpose is …………….
………………………………………………………………………………………………………………………………..
………………………………………………………………………………………………………………………………..
………………………………………………………………………………………………………………………………..
5. Cost centre ………………………………………………………………………………………………………………..
6. Organisation and account code ……………………………………………………………………………………….
Funds CONFIRMED by finance officer/planning officer:
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…………………………………. |
…………………………………… |
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Name |
Signature |
Date |
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APPROVAL by the Accounting Officer (or delegated authority) |
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This …………………………………………………. day of ……………………………………… 20……………. |
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…………………………………………………… |
…………………………………… |
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Name |
Signature |
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Designation: …………………………………………………………………………………………………………… |
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OFFICIAL STAMP:
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Form F
(reg. 44(2)(e))
Integrity Agreement
Declaration on Ethical Conduct, Fraud and Corruption (applicable to the Bidders)
1. Pursuant to section 56(2) and (3) of the Act, a bidder shall complete and submit this form with a bid.
2. We the undersigned confirm the following in the preparation of our bid:
a. neither we, nor any of our employees, associates, agents, shareholders, consultants, partners, beneficial owners or associates have any relationship that could be regarded as a conflict of interest as set out in the bidding documents;
b. should we become aware of the potential for such a conflict, we will report it immediately to the procuring entity;
c. that neither we, nor any of our employees, associates, agents, shareholders, partners, beneficial owners, consultants or associates have entered into corrupt, fraudulent, coercive or collusive practices in respect of our bid or proposal; and
d. that no payments in connection with this procurement exercise have been made by us or our associates, agents, shareholders, partners, beneficial owners or associates to any of the staff, associates, consultants, employees or immediate family members of such who are involved with the procurement process on behalf of the Procuring Entity, Client or Employer.
3. We understand our obligation to allow the Government including the procuring entity and Authority to inspect all records relating to the preparation of our bid and any contract that may result from such, irrespective of whether we are awarded a tender or not.
4. In case of a successful bid, should we be found to be in breach of the integrity agreement, the procuring entity has the right to cancel the procurement including termination of any resulting contract at no cost or legal obligation on her part.
Authorised signature: ………………………………………………………………………………………..
Name and title of signatory: ………………………………………………………………………………..
Name of bidder: ……………………………………………………………………………………………….
Date: …………………………………………………………………………………………………………….
Address: ………………………………………………………………………………………………………..
Phone number: ………………………………………………………………………………………………..
Fax number: ……………………………………………………………………………………………………
Email address: …………………………………………………………………………………………………
Form G
(reg. 50(7)(a)(i))
Record of Bid Opening – Single Envelope or Package
Procuring entity: ………………………………….
User Department: ………………………………..
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Tender number: |
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Tender title: |
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Closing date: |
Day |
Month |
Year |
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Closing time: |
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1Bid No. |
2Name of bidder |
3No. of copies |
4Currency |
5Bid amount/rate |
6Other items submitted |
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O |
C |
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We certify that:
a. bids as noted in the above list and no others were received as per the stipulated time in the invitation to tender; and
b. such bids were opened in our presence and marked appropriately by us on …../…. /20….
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Department/Unit |
Full names of officers present |
Signature |
7Designation |
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Form H
(reg. 50(7)(a)(ii))
Record of Technical Proposal Opening – Dual Envelope or Package
Procuring entity: ………………………………………………………………………………….
User Department: ………………………………………………………………………………..
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Tender number: |
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Tender title: |
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Closing date: |
Day |
Month |
Year |
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Closing time: |
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8Bid No. |
9Name of bidder |
10No. of copies |
11Finacial bid submitted |
12Other items submitted |
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O |
C |
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We certify that:
a. bids as noted in the above list and no others were received as per the stipulated time in the invitation to tender; and
b. such bids were opened in our presence and marked appropriately by us on …………/…. /20….
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Department/Unit |
Full names of officers present |
Signature |
13Designation |
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Form I
(reg. 50(7)(a)(iii))
Record of Financial Opening – Dual Envelope or Package
Procuring entity: …………………………………………
User Department: ……………………………………….
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Tender number: |
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Tender title: |
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Closing date: |
Day |
Month |
Year |
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Closing time: |
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14Bid No. |
15Name of bidder |
16No. of copies |
Bid amount/rate |
17Other items submitted |
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O |
C |
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We certify that:
a. bids as noted in the above list and no others were received as per the stipulated time in the invitation to tender; and
b. such bids were opened in our presence and marked appropriately by us on ……………./…………. /20……
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Department/Unit |
Full names of officers present |
Signature |
18Designation |
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Form J
(reg. 80(1))
Application for Deviation from Use of a Procurement Method
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Reference number |
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Name of procuring entity |
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Name of applicant |
Signature |
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Designation |
Date |
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Project title |
Location |
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Nature of requested deviation (person, procurement activity, procuring entity) |
Estimated value |
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Exemption required for, and justification |
Single procurement ……………… Multiple procurement ……………. Period ……………… |
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Record of previous exemption to the current procurement (if any) |
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Extent of non-compliance-how the deviation will be managed to prevent a compromise in the process: |
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Relevant supporting documents (Attach) |
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Decision by Minister |
Approved: Not approved: Date: Signature: |
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If approved – date exemption period ends: |
Indicate any conditions attached: |
Form K
(reg. 82(1))
Application to Use Alternative Procurement Process
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Reference number |
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Name of procuring entity |
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Name of applicant |
Signature |
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Designation |
Date |
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Project title |
Location |
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Basis of alternative procurement process required (international agreement or external obligation) |
Estimated value |
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Nature of alternative procurement process (use of SPB, application of the Act, etc.) |
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Alternative procurement process required for, and justification – |
Single procurement ……….. Multiple procurement ……… Period ……… |
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Record of previous alternative procurement processes to the current project (if any) |
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Extent of non-compliance – how the alternative procurement process will be managed to prevent a compromise in such procurement process: |
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Relevant supporting documents (attach) |
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Decision by Authority |
Approved: Not approved: Date: Signature: |
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If approved – date the alternative procurement process period ends: |
Indicate any conditions attached: |
Form L
(reg. 83(1))
Request for Retroactive Approval
Procuring entity:
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Part A: To be completed by user Department |
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Department |
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Project No. or title: |
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Date procurement undertaken: |
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Brief procurement description: |
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Planned or unplanned (was the procurement part of the Annual Procurement Plan): |
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Reasons for retroactive procurement: |
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Retroactive amount required for approval (Pula): |
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Availability of funds: (attach proof of availability of funds) |
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Proposed future corrective measures: |
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Accountable project officer: |
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Name: Sign: |
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Date: |
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Head of user Department: |
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Name: Sign: |
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Date: |
Comments and recommendation by head of user Department: |
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Part B: To be completed by the procurement unit |
Comments and recommendation by procurement unit: |
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Assessing officer (head of procurement unit): |
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Name: Signature: |
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Date: |
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Part C. To be completed by the procurement oversight unit |
Comments and recommendation by procurement oversight unit: |
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Head of procurement oversight unit: |
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Name: Sign: |
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Date: |
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Part D. To be completed by the Accounting Officer |
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Name: Sign: Date: |
Decision by the Accounting Officer: |
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Administrative action by Accounting Officer: |
Form M
(reg. 96(1))
Declaration of Beneficial Owners
Declaration to establish beneficial owners of a citizen owned contractor or a joint venture with a non-citizen owned contractor
1. Declaration to establish eligibility for reservation and price preferences for citizen contractor and any other entity.
2. The declaration shall be signed by all contractors tendering for reserved contracts and contracts subject to preferences as a condition of each tender.
3. Definition—
The following definitions shall apply to this declaration:
a. citizen Contractor: a natural person or an incorporated company wholly owned and controlled by persons who are citizens of Botswana;
b. control: the possession and exercise of legal authority and power to manage the assets, goodwill and daily operations of a business and the active and continuous exercise of managerial and financial authority and power in determining the policies and directing the operations of the business;
c. beneficial Owner: means a natural person, who directly or indirectly through any contract, arrangement, understanding, relationship or otherwise—
(i) in relation to an incorporated body, ultimately owns or has a controlling ownership or exercises ultimate effective control through positions held in the incorporated body or is the ultimate beneficiary of a share or other securities in the body corporate,
(ii) in relation to a trust or other legal arrangement, is the settlor, trustee or ultimate beneficiary of the trust or legal arrangement or has the power, alone or jointly with another person or with the consent of another person, to—
• dispose of, advance, lend, invest, pay or apply trust property or property of the legal arrangement,
• vary or terminate the trust or legal arrangement,
• add or remove a person as a beneficiary or to or from a class of beneficiaries,
• appoint or remove a trustee or give another person control over the trust or legal arrangement, or
• direct, withhold consent or to overrule the exercise of a power referred to in subparagraphs (i)-(iv),
(iii) is the ultimate beneficiary of proceeds of a life insurance policy or other related investment services when an insured event covered by the policy occurs, or
(iv) a transaction is conducted on his or her behalf;
d. net amount: the financial value of the Contract at the time of the award of the Contract, exclusive of sales tax which the law requires the Employer to pay to the Contractor; and
e. owned: Having all the customary incidents of ownership, including the right of disposition, and sharing in all the risks and profits commensurate with the degree of ownership interest or shareholding as demonstrated by an examination of the substance as well as the form of ownership arrangements.
4. The company operates banking and savings accounts, and the only authorised signatories are:
i. …………………………………………………………………………………………………………………..
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(Bank name and name of signatory) (Omang No./Passport)
ii. …………………………………………………………………………………………………………………..
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(Bank name and name of signatory) (Omang No. Passport)
iii. …………………………………………………………………………………………………………………..
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(Bank name and name of signatory) (Omang No./Passport)
iv. …………………………………………………………………………………………………………………..
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(Bank name and name of signatory) (Omang No./Passport)
5. I hereby provide a current list of beneficial owners for the company/partnership/society/joint venture/private foundation/statutory body, or any other (please specify)
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List of beneficial owners |
Capacity in company |
Nationality |
Percentage |
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1 |
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6. Undertakings:
The tenderer confirms that it is a citizen contractor and undertakes to remain a citizen contractor for the duration of the contract. I acknowledge that if after the award of this tender any of these declarations are found to be false then any contract(s) between ourselves and the procuring entity shall be terminated immediately and we may be barred from future tendering for Government services and liable to possible prosecution.
7. Sanctions relating to reserved treatment:
Any changes in ownership or control which violate the definition of a citizen contractor shall be sufficient reason for the procuring entity to terminate the contract.
8. All the beneficial owners, partners/directors/shareholders and Administrators of …………………………………………………………. (name of company) have read this declaration and agree to its contents:
a. All the Beneficial owners, partners/directors/shareholders and Administrators hereby give consent and verification of the information provided above and understand that this may include but is not limited to the verification of assets, liabilities, accounts, bonds and undertake to notify the competent authorities of any change to the information provided in this declaration within seven days of such occurrence; and
b. I understand and declare that each matter here deposed to is essential for the tender validity of ……………………… (name of company)
NB: The procuring entity reserves the right to confirm the authenticity of the information provided above.
THUS SIGNED AND SWORN TO BEFORE ME COMMISSIONER OF OATHS AT …………………………………… ON THIS ………………… DAY OF …………………………… 20……, AT ………AM/PM, THE DEPONENT HAVING ACKNOWLEDGED THAT HE KNOWS AND UNDERSTANDS THE CONTENTS OF THIS DECLARATION AND THAT IT IS BINDING ON HIS CONSCIENCE.
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COMMISSIONER OF OATHS CAPACITY:
Form N
(reg. 99(2)(k))
End of Activity Report
All Procuring Entities shall submit to the Authority, in respect of each bid, an end of activity report not later than the date of final payment to the contractor.
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1. Bidding Data |
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Tender number: |
Tender title: |
Method of procurement: (open, restricted, direct etc.) |
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Date of publication: |
Tender closing date: |
Closing date extensions (if any) and reason(s): |
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2. Contract Details |
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Procuring entity |
User Department |
Contract number |
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Contract title/ name: |
Procurement category (works/services/ supplies/PPP) |
Project performance |
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Contract type: (lump sum, unit rate or Time-based etc.) |
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Scope1: No change/change Cost: within/outside Time: within/outside |
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Contractor name; Sub-contractor/s name/s2: |
Contract award date Conditions for contract effectiveness (if any): e.g. site hand-over, submission of performance security, advance payment etc. |
Contract date Contract effective date |
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Contract original description (brief description of works/services/supplies/PPP) |
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Contract final description (brief description of works/services/supplies/PPP at completion or termination of the contract) |
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3. Cost Details |
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Estimated contract cost (as per the procurement plan) |
Original contract award amount |
Variations if any |
Causes of variations |
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Final contract amount at completion |
Additional payments on contract price (if any) |
Planned contract completion date |
Actual contract end date |
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4. Performance Details |
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Performance indicators for contractor a. Adherence to Technical Spec’s/Drawings/TOR b. Delivery as per contract terms c. Changes in contract costs d. Changes in contract Scope (contract addenda) e. Adequate reporting and contractual relationships and qualified contractor’s personnel f. any other |
Performance achievement Extent of Contractor’s achievement against Performance Indicators a. Quality Levels (as per Tech’l Specs/Drawings/Terms of reference); select one of: Poor/Satisfactory/Excellent b. Delivery as per contract deadlines; select one of; On-time/excusable delay/ non-excusable delay c. Cost Over-runs: select one of: inflation-related, design problems, supervision problems, force majeure d. Changes in contract scope: select one or more of: design problems, additional requirements, need to upgrade spec’s of materials or equipment d. Quality of Progress Reports/Monthly statements and other Contractual dealings and Communications: select one of: Poor/Satisfactory/Excellent |
Sources of performance variation (Give further Explanations for deviations, if any, from stipulated contract performance indicators. Indicate if such variations were caused by the Contractor, the PE or any other reason) |
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Overall performance score of the contractor with justifications: (excellent/ good/satisfactory/poor) |
Corrective measures taken (Action taken by a procuring entity and attach copies of correspondences) (Indicate claims if any) |
Further action recommendation (Recommendation by a procuring entity) |
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Other comments (e.g. Unethical behaviour: excessive claims, unauthorised changes in key personnel by a contractor etc.) |
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Prepared by: contract manager |
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Name |
Signature |
Date |
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Approved by: Accounting Officer |
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Signature |
Date |
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5. PPRA OFFICIAL USE ONLY |
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Authority’s report analysis |
Further action |
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Authority’s decision |
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NOTE:
1. Accounting Officers to ensure that project officers being transferred complete this form as interim activity report.
2. All procuring entities shall also use this form for reporting interim activity reports on all projects.
Form O
(reg. 122(1))
Declaration of Interest
Name: ………………………………………………………………………………………………………………………
Position held in organisation: ………………………………………………………………………………………….
a. Nature of interest Tick as appropriate:
i. ALREADY HAS PERSONAL INTEREST: 
ii. INTEND TO ACQUIRE PERSONAL INTEREST:
iii. INDICATE TYPE OF INTEREST (direct or indirect): …………………………………………..
b. Name of company/firm/entity: …………………………………………………………………………….
c. Type of business relationship:
DIRECTOR:
SHAREHOLDER:
AGENT:
OTHER:
For “other”, give reasons:
d. Tender No. and title:
e. Description of procurement activity:
f. Recusal from adjudicating, evaluating, advising, handling or otherwise dealing with matter or attendance of a meeting when the procurement activity or tender was discussed?
If yes, give reasons: ……………………………………………………………………………………..
g. Date of assignment on the matter or of a meeting when the procurement activity or tender was discussed:
…………………………………………………………………………………………………………………
Signature (Declarant): …………………………………………………..
Date: ………………………………………………………………………..
Decision by Accounting Officer/authorised officer: ………………………………………..
Important definitions
Direct interest- where a member or employee of a public body or the immediate member of the family of the employee of a public body; holds position in, is an employee of, is a shareholder in or gives services for remuneration or reward to a company which is the subject of the interest.
Immediate member of family- means spouse, son, daughter, sibling, or parent of the member of employee of a public body.
Indirect interest- means an employee, agent, or nominee of a member or employee of a public body or his or her immediate member of family has a direct interest in a company.
NOTE: The above definitions are given merely as a necessary guide from the Corruption and Economic Crime Act (Cap. 08:05), as amended. Members, Directors and employees are encouraged to always exercise caution and make appropriate declarations of interest even in circumstances where they have family relations that do not strictly fall within the definitions provided above.
Form P
(reg. 123(2))
Confidentiality Relating to Procurement Process
Name of declarant: ……………………………………………………………………………………………..
Identification document and number: Omang/Passport: ………………………………………………..
Position held in Organisation: ………………………………………………………………………………..
I, the undersigned hereby declare that—
1. I am aware of my obligation to abide by the requirements of confidentiality.
2 I know that I am obliged not to divulge any confidential information acquired by myself, or that came to my attention, by virtue of my involvement in any procurement process which is not publicly available.
3. I shall also respect the confidential nature of the opinions expressed in any procurement process I am involved in.
4. I undertake not to disclose such information even after my participation or association with the procurement process has ceased.
5. Should I receive confidential information in the course and context of my procurement process, I shall treat such information under conditions of strict confidentiality, and exclusively use it for the purpose for which it was made available to me and I shall not divulge to any third party.
6. The above implies that I the undersigned:
a. will not divulge, publish or otherwise make available to any third party information received during a procurement process, without prior written consent of an Accounting Officer or the Authority as applicable, during or after participation in the work of a procuring entity;
b. will not use information received during a procurement process for personal benefit or that of any third party;
c. will ensure safe storage of the confidential information and restricted information in my possession (physical and knowledge), applying appropriate security the information is managed electronically and not retain the information for longer than needed for the completion of the assignment or procurement process; and
d. further that any unauthorised disclosure of confidential or restricted information in my knowledge or possession shall constitute a breach of this undertaking and may result in me being administratively sanctioned or prosecuted for such unauthorised disclosure.
7. Notwithstanding anything to the contrary, herein stated, confidential information may be disclosed by operation of the law.
DONE at ……………………… on the ………….. of ………….. 20………
Signature: ………………………………………
Form Q
(reg. 137(3))
Request for Change of Particulars of Contractor in Contractors’ Register
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Nature of change: |
Selection (X) |
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1. Ceasing to operate (closing business, etc.) |
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2. Change of information (shareholding/ directorship/ownership) |
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3. Place of operation |
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4. Change of key personnel (employee) |
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5. Change of mandatory requirements (equipment/plant/machinery, etc.) |
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Date of change of contractor’s particulars: ………………………….
Reasons of change: ………………………………………………………………………………………………….
…………………………………………………………………………………………………………………………….
…………………………………………………………………………………………………………………………….
…………………………………………………………………………
………… OFFICE USE …………
Authority: impact of change on the company codes status
DECISION: ………………………………………………………….
Form R
(reg. 139(1))
Application for Registration in Contractors’ Register
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COMPANY DETAILS |
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Legal Entity: |
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Unique Identification Number (UIN): |
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Directors: |
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Shareholders: |
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Phone/Mobile number: |
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Email address: |
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DISCIPLINE:
TYPE OF APPLICATION: NEW
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LIST OF CODES/SUBCODE APPLIED |
SUPPORTING DOCUMENTS:
APPLICATION SUBMISSION AND ASSESSMENT FEES:
….. OFFICE USE …….
DATE RECEIVED ………
APPLICATION STATUS: …..
Form S
(reg. 145(1))
Application for Upgrade of Contractor
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COMPANY DETAILS: |
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Company name: |
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Unique Identification Number(UIN) |
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Phone/Mobile number: |
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Email address |
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Current codes/subcode for upgrade |
Codes to be upgrade to |
Reasons or justifications |
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Provide attachments
Submit
………. OFFICIAL USE ……….
Form T
(reg. 145(1))
Application for Downgrade to Contractor
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COMPANY DETAILS: |
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Company name: |
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Unique Identification Number(UIN) |
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Phone/Mobile number: |
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Email address |
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Current codes/subcode for downgrade |
Codes to be downgrade to |
Reasons or justifications |
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Provide attachments
Submit
………. OFFICIAL USE ……….
Form U
(reg. 150(1))
Application for Restoration of Contractor’s Name in the Contractors’ Register
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ENTITY DETAILS: |
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Entity name: |
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Unique Identification Number (UIN): |
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Phone/Mobile number: |
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Email address: |
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Reason(s) for removal from Contractors’ Register:
…………………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………………
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Provide attachments
Submit
………. OFFICIAL USE ……….
Action officer:
Name: …………………………………………………………
Designation: ………………………………………………….
Date: …………………………………………………………..
Decision:
Approve/Reject/Defer
Form V
(reg. 154)
Application for Renewal of Certificate of Registration
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COMPANY DETAILS |
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Legal Entity Name: |
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Unique Identification Number (UIN): |
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Directors: |
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Shareholders: |
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Phone/Mobile number: |
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E-mail address: |
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LIST OF CODES/SUBCODE APPLIED FOR RENEWAL |
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SUPPORTING DOCUMENTS:
APPLICATION SUBMISSION AND ASSESSMENT FEES:
………. OFFICIAL USE ……….
DATE RECEIVED ………….
APPLICATION STATUS: ………….
Form W
(reg. 162(1))
SUBMISSION OF ALLEGATIONS TO AUTHORITY (for reporting of an allegation of any conduct of a contractor which contravenes the code of conduct set out in Schedule 3)
Date: DD/MM/YYYY
1. Details of the Informer:
Name of Company, firm or any other: ………………………………………………………………………………
Postal address: ………………………………………………………………………………………………………..
Physical address: ………………………………………………………………………………………………………
City/Town/Village: ………………………………………………………………………………………………………
Telephone number: …………………………………………………………………………………………………….
Mobile telephone number: ……………………………………………………………………………………………
E-mail address: ………………………………………………………………………………………………………..
2. Details of Defaulting Contractor (as applicable)
Name: ……………………………………………………………………………………………………………………
Postal address: ……………………………………………………………………………………………………….
Physical address: …………………………………………………………………………………………………….
Telephone number: ……………………………………………………………………………………………………
Reference/Tender number (where applicable): ………………………………………………………………….
Subject matter (Title of tender etc.)
……………………………………………………………………………………………………………………………..
……………………………………………………………………………………………………………………………..
Approximate value of tender (where applicable): ………………………………………………………………..
3. Timelines
……………………………………………………………………………………………………………………………..
Date of breach (if applicable):
4. Description of alleged breach
……………………………………………………………………………………………………………………………..
……………………………………………………………………………………………………………………………..
5. Documents submitted in support of allegation (where applicable)
……………………………………………………………………………………………………………………………..
……………………………………………………………………………………………………………………………..
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Signed by |
Company date stamp: |
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For official use only |
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Received by: …………………………………… |
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Authority Date Stamp: |
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Form X
(reg. 169(2))
Application to be Removed from Register of Suspended or De-listed Contractors
Regulation 177(1) and Regulation 197(2)
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LEGAL ENTITY DETAILS |
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Entity Name: |
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Unique Identification Number (UIN): |
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Phone/Mobile number: |
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Email address: |
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REASON(S) FOR REMOVAL:
……………………………………………………………………………………………………………………………..
……………………………………………………………………………………………………………………………..
……………………………………………………………………………………………………………………………..
PROVIDE ATTACHMENTS
SUBMIT
………. OFFICIAL USE ……….
ACTION OFFICER: ………………………………………..
NAME: ……………………………………………………….
DESIGNATION: …………………………………………….
DATE: ……………………………
DECISION:
Approve/Reject/Defer
Form Y
(reg. 171(1))
Lodging of Complaints
Date: DD/MM/YYYY
1. Details of the complainant:
Name of company, firm or any other: ……………………………………………………………………………
Postal address: ………………………………………………………………………………………………………
Physical address: ……………………………………………………………………………………………………
City/Town/Village: ……………………………………………………………………………………………………
Telephone number: …………………………………………………………………………………………………..
Mobile telephone number: ………………………………………………………………………………………….
E-mail address: …………………………………………………………………………………………………………
Status of complainant (prospective bidder/actual bidder) ……………………………………………………..
2. Details of respondent (procuring entity/Authority)
Name of procuring entity: …………………………………………………………………………………………..
Postal address: ……………………………………………………………………………………………………….
Physical address: …………………………………………………………………………………………………….
Telephone number: ……………………………………………………………………………………………………
Reference/Tender number: ………………………………………………………………………………………….
…………………………………………………………………………………………………………………………….
…………………………………………………………………………………………………………………………………
Subject matter (Title of tender etc.)
Bid value of tender (where applicable): ……………………………………………………………………………
3. Timelines
Date contract awarded (if applicable):
Date decision complained of was made or supposed to be made by Accounting Officer/Authority (if applicable): ……………………………………………………
4. Description of complaint detailing the provision(s) of the Act or Regulations that have been breached and how they have been breached
……………………………………………………………………………………………………………………………….
……………………………………………………………………………………………………………………………….
……………………………………………………………………………………………………………………………….
5. The loss or injury to be/or likely to be suffered ……………………………………………………………..
……………………………………………………………………………………………………………………………….
……………………………………………………………………………………………………………………………….
6. Remedies being sought ……………………………………………………………………………………………..
……………………………………………………………………………………………………………………………….
……………………………………………………………………………………………………………………………….
7. Statement of what complainant thinks would be a reasonable solution to the complaint
8. Documents submitted in support of complaint:
Signed by
…………………………………………………………………………………………………………………………………..
Company date stamp:
Signature of the
Complainant
For OFFICIAL USE only:
Received by: …………………..
(Procuring entity/Authority)
Procuring entity/Authority’s date stamp:
(regs. 131(8), 137(3), 139(1), 145(1), 150(1) and 154)
Contractor Registration Fees
Works Assessment Fees
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Charge (Pula) |
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Contractor registration |
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OC |
300 |
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A |
600 |
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B |
900 |
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C – 100% Citizen |
1 500 |
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C – Majority Citizen |
1 800 |
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D – 100% Citizen |
2 250 |
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D – Majority Citizen |
3 000 |
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D – Minority Citizen |
4 500 |
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E – 100% Citizen |
3 000 |
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E – Majority Citizen |
4 500 |
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E – Minority Citizen |
6 000 |
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E – 100% Foreign |
9 000 |
Service and Suppliers Assessment Fees
| Services and Suppliers
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Charge (Pula)Per Sub-Code
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| 100% Citizens
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300
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| Majority Citizens
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600
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| Minority Citizens
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1 500
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| 100% Foreign
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3 000
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• Normal application submission fee: P200 for both citizen and non-citizen.
• Express application submission fee: P5000.
• Annual subscription fee: P200.
• Penalty fees for failure to submit, information changes: P5000.
• 100% citizen youth owned contractors (18 years to below 36 years old), will be charged at 50% per sub-code.
SCHEDULE 3
CODE OF CONDUCT OF CONTRACTORS
(regs. 102(8)(b), 149(1)(g), 157(1)(a)(i), 160(a) and 162(1), (2))
1. GENERAL
1.1. A contractor shall ensure that a competent person carries out the contractual obligations of the contractor.
1.2 A contractor shall ensure that certified copies of all mandatory certificates, professional qualifications, accreditation and affiliation of employees are kept in the office and shall be made available to the Authority immediately upon request.
1.3 A contractor shall ensure that all relevant requirements are provided for in the procurement documents, that services and products are delivered on time in line with the procurement documents or service requirements.
2. DISCLOSURE OF INFORMATION
2.1 A contractor shall not disclose information acquired from or through its association or relationship with the Authority or its committees, a Government department or agency, which has not been made public on a potential or current service provider for the contractor’s advantage, material gain and advancement.
2.2 A contractor, shall not use its, or his or her association or relationship (other than as allowed in the association agreement) with the Authority or its committees, or Government departments or agency for the contractor’s advantage, material gain or advancement.
3. COLLUSION AND FRONTING
3.1 A contractor shall not manipulate his or her true shareholding; directorship, management, employees or financial resources in order to be compliant with the requirements of section 95 of the Act regarding classification of contractors in terms of ownership, etc.
3.2 A contractor shall not be involved in fronting, tokenism and window dressing practices during the tendering stage or while seeking registration into the register of contractors, under section 91 of the Act; for purposes of this code, the terms “fronting”, “tokenism” and “window dressing mean the misrepresentation of a material fact of the ownership, management and control, as .well as the skilled and specialist positions: of existence of a contractor in order to appear compliant with citizen reservation and citizen preferential treatment and for material gain, advancement of advantage in the procurement process.
3.3 A contractor shall not sublet or sub-contract without declaration at tender stage a disproportionate amount of works, or the core aspect of the assignment to a contractor who does not qualify for reservation or preferential treatment. This may also take the form of utilising the resources which include, equipment, facilities, material, financial, etc., of a contractor who does not qualify for reservation or preferential treatment. In this regard the true material benefit and advancement does not meaningfully and tangibly accrue to the contractor the due reservation or preferential treatment.
3.4 A contractor shall not have a prevalence of non-executive directors or tokenism whose qualification and experience does not correlate to the core business of the contractor. Passive ownership of an entity can also lead to some form of fronting.
3.5 A contractor shall not engage in any collusive practices that have a direct or indirect impact on the cost of engagement to the procuring entities.
3.6 A contractor shall not engage in any activity that gives one bidder an improper and unethical advantage over other bidders.
4. PROFESSIONAL CONDUCT AND INTEGRITY
4.1 A contractor shall not submit false information or falsified documents to the Authority in order to influence the decision of the Authority to register such contractor in the register of contractors under section 91 of the Act.
4.2 A contractor shall not submit false information or falsified documents during the tendering process in order to deceive a procuring entity or clients into believing that the contractor has capabilities and capacities to perform contracts which the contractor is not capable of doing by—
4.2.1 Unauthorised use of one’s name or using the name of another for purpose of public bidding.
4.2.2 Withdrawal of a bid, or refusal to accept an award, or enter into contract with the government without justifiable cause, after he or she had been adjudged as having submitted the lowest calculated responsive bid or highest rated responsive bid.
4.2.3 Refusal or failure to post the required performance security within the prescribed time.
4.2.4 Refusal to clarify or validate in writing its bid during post qualification within a period of seven days from receipt of the request for clarification.
4.2.5 Any attempt by a bidder to unduly influence the outcome of the bidding in his or her favour.
4.2.6 All other acts that tend to defeat the purpose of the competitive bidding, such as but not limited to contractors withdrawing from bidding or submitting letters of non-participation except for valid reasons.
4.2.7 Failure of the contractor, solely due to his or her fault or negligence, to mobilise and start work or performance within the specified period in the Notice to Proceed (“NTP”).
4.2.8 Failure by the contractor to comply with its contractual obligations without valid cause, or failure by the contractor to comply with any written lawful instruction of the procuring entity or its representative(s) pursuant to the implementation of the contract. Lawful instructions include but are not limited to the following—
a. Employment of competent technical personnel and/or work supervisors,
b. Compliance to safety, health and environment requirements,
c. Stockpiling in proper places of all materials and removal from the project site of waste and excess materials, including broken pavement and excavated debris in accordance with approved plans and specifications and contract provisions,
d. Deployment of committed equipment, facilities, support staff and manpower, and
e. Renewal of the effective dates of the performance security after its expiration during the course of contract implementation.
4.2.9 Assignment and subcontracting of the contract or any part of the contract or substitution of key personnel named in the proposal without prior written approval by the procuring entity.
4.2.10 For the procurement of goods, unsatisfactory progress in the delivery of the goods by the manufacturer, supplier or distributor arising from his or her fault or negligence, or unsatisfactory or inferior quality of goods, as may be provided in the contract.
4.2.11 For the procurement of consulting services, poor performance by the consultant of his or her services arising from his fault or negligence. Any of the following acts by the consultant shall be construed as poor performance—
a. Defective design resulting in substantial corrective works in design or construction;
b. Failure to deliver critical outputs due to consultant’s fault or negligence;
c. Specifying materials which are inappropriate, substandard, or way above acceptable standards; and
d. Allowing defective workmanship or works by the contractor being supervised by the consultant.
4.2.12 For the procurement of infrastructure projects, poor performance by the contractor or unsatisfactory quality or progress of work arising from his or her fault or negligence as reflected in the Contractor’s Performance Evaluation System (“CPES”) rating sheet. In the absence of the CPES rating sheet, the existing performance monitoring system of the procuring entity shall be applied. Any of the following acts by the contractor shall be construed as poor performance—
a. Negative slippage of 15 per cent and above within the critical path of the project due entirely to the fault or negligence of the contractor; and
b. Quality of materials and workmanship not complying with the approved specifications arising from the contractor’s fault or negligence.
4.2.13 Wilful or deliberate abandonment or non-performance of the project or contract by the contractor resulting to substantial breach of the contract without lawful or just cause.
4.2.14 Submission of bids that contain false information or falsified documents, or the concealment of such information in the bids in order to influence the outcome of eligibility screening or any other stage of the public bidding.
4.2.15 Submitting the educational qualification documents and references of persons whom the contractor purports to be his or her employees when they are not, or without such persons’ consent to the Authority or its committees.
4.2:16 Overvaluing of the contractor’s assets as well as overcharging of works/services/supplies by the contractor.
4.2.17 A contractor shall meet his or her contractual obligations in the delivery of products and services.
4.2.18 A contractor shall ensure that he or she conducts himself or herself professionally during the procurement process and honours contractual commitments timeously and in a professional manner.
4.2.19 A contractor shall ensure that the contractor’s obligations in terms of contracts with subcontractors and agents are scrupulously and timeously met, particularly in regard to making payments.
4.2.20 A contractor shall not engage in unfair and unethical practices in dealings with subcontractors.
4.2.21 A contractor shall not make spurious claim for additional payment and extension of time.
4.2.22 A contractor shall not use an advance mobilisation loan for any purpose other than the intended purpose and that project.
4.2.23 A contractor shall perform the contractor’s contract duties in an unbiased and conscientious manner, bearing in mind the legitimate interests of all parties to the procurement process and the public.
4.2.24 A contractor shall not abandon the work that such contractor is contracted to do.
4.2.25 A contractor shall not fail to deliver work to the expectations and obligations as provided by the contract under which the registered contractor is contracted without any valid reason.
4.2.26 A contractor shall ensure that he or she delivers or performs his or her obligations under the contract according to the specifications of his or her contract with a procuring entity.
4.2.27 In respect of any business dealing with procuring entity, the contractor must ensure that there is no conflict of interest and must declare and disclose any conflict of interest or potential conflict of interest.
4.2.28 The contractor shall ensure that it shall comply with and that persons associated with the contractor comply with all applicable laws and regulations with respect to the conduct of its business and further undertake that it shall not and shall ensure that persons associated with the contractor shall not undertake or be involved in, whether directly or indirectly, with any of the following activities—
a. fix prices or terms related to pricing;
b. engage in any anti-competitive activity;
c. rig a competitive bidding process;
d. engage in any money-laundering activity;
e. engaged in or has the reputation of engaging in corrupt, fraudulent, collusive, coercive, unethical or obstructive practices; or
f. has breached any confidentiality obligation towards the procuring entity.
4.2.29 The contractor undertakes that it shall furnish a copy of this Code of Conduct to persons associated with the contractor in so far as such persons associated with the contractor are or will be involved in the delivery or execution of the contract or project.
PUBLIC PROCUREMENT (TRIBUNAL) REGULATIONS
(section 150)
(5th May, 2023)
ARRANGEMENT OF REGULATIONS
REGULATION
PART I
Preliminary
1. Citation
2. Interpretation
3. Application
PART II
Complaint and Appeals Procedure
4. Lodging of complaint or appeal
5. Service of complaint or appeal
6. Defence to complaint or appeal
7. Reply to defence
8. Third party procedure
9. Direction
10. Award against third party in default
11. Consolidation of complaints or appeals
12. Amendment to complaint and defence
PART III
Hearing Procedure
13. Hearing
14. Non-appearance of party
15. Interim order
16. Decision of Tribunal
17. Appeal
PART IV
General Provisions
18. Meetings of Tribunal
19. Referral of decision
20. Register
21. Fine
22. Taxation of costs
23. Offences and penalties
S.I. 61, 2023.
PART I
Preliminary (regs 1-3)
These Regulations may be cited as the Public Procurement (Tribunal) Regulations.
In this Act, unless the context otherwise requires—
“appeal” means any decision, matter, act or omission arising out of procurement proceedings by the procuring entity or Authority with respect to which an appeal is preferred; and “complaint” shall be construed accordingly;
“applicant” means any person or entity who lodges an appeal before the Public Procurement Tribunal;
“complainant” or “applicant” means any person or entity who lodges an appeal before the Public Procurement Tribunal;
“costs” means any amount of money reasonably incurred in relation to a complaint or appeal or in defence of a complaint or appeal;
“Registrar” means the Registrar of the Public Procurement Tribunal; and
“respondent” means any person against whom an appeal has been lodged.
These Regulations shall apply in respect of complaints or appeals against any decision, act or omission of an Accounting Officer or the Authority in relation to—
(a) a procurement process; or
(b) the registration of contractors, declassification of information or disciplinary process.
PART II
Complaint and Appeals Procedure (regs 4-12)
4. Lodging of complaint or appeal
(1) A person may lodge with the Tribunal, a complaint or an appeal against a decision—
(a) including a matter, act or omission of the Authority or an Accounting Officer; or
(b) by a procuring entity of the Authority, and the Tribunal shall acknowledge receipt of the complaint or appeal within two days of receipt of such complaint or appeal.
(2) A complaint or appeal under subregulation (1) shall be—
(a) in Form A set out in Schedule 1;
(b) filed with the Registrar of the Tribunal; and
(c) made within 14 days from the date the complainant becomes aware or is notified of the decision, matter, act or omission giving raise to the complaint.
(3) A complaint or appeal lodged in terms of subregulation (1) shall be accompanied by a non-refundable lodging fee and a complaint fee, which is refundable on success of a complaint or appeal, set out in Schedule 2.
(4) The complaint or appeal under subregulation (1) shall contain the—
(a) names and addresses of the parties;
(b) statement of facts giving rise to the complaint or appeal; and
(c) relief or remedy sought.
(5) The complaint or appeal made under subregulation (1) shall be lodged together with copies of—
(a) the decision of the Accounting officer or the Authority, whichever is the source of the complaint;
(b) the relevant set of bidding documents;
(c) the bidding process set forth in the invitation to tender;
(d) any document supporting the complaint or appeal that was submitted during the bidding process by the complainant; and
(e) any other document pertinent to the case.
(6) The Tribunal may allow, after an application to do so is made—
(a) a withdrawal of a complaint or appeal at any point before delivery of the decision; or
(b) an agreement between the parties to a complaint or appeal, settling the matter.
(7) An application under subregulation (6) shall be supported by an affidavit providing reasons for the proposed withdrawal and shall embody a consent to pay costs by the applicant.
5. Service of complaint or appeal
(1) The applicant shall, within seven days after receipt of an acknowledgment under regulation 4(1), summon the respondent in terms of Form B set out in Schedule 1 to present his or her defence.
(2) The summons in subregulation (1) shall be served on the respondent by way of—
(a) personal delivery; or
(b) registered mail with return receipt.
(3) The complainant may, where he or she experiences any difficulty in effecting service under subregulation (2)(a), make an application to the Tribunal for leave to effect substituted service and such application shall be supported by an affidavit deposing as to the efforts that have been made to effect service.
(4) The Tribunal may, upon hearing the application, order that substituted service be effected on the respondent by delivery of a copy of the summons in full view of the respondent or by advertisement in a local newspaper circulating in the area where the respondent had his or her last place of residence or place of business for two consecutive weeks.
6. Defence to complaint or appeal
(1) The respondent shall, within 14 days of receipt of the summons under regulation 5, present to the Tribunal—
(a) an intention to defend in accordance with Form C set out in Schedule 1;
(b) a defence in writing to the complaint or appeal, and shall effect service of the documents under paragraph (a) and (b) on the applicant.
(2) The respondent shall under subregulation (1) effect service by way of—
(a) personal delivery to the applicant; or
(b) registered mail with return receipt.
(3) The respondent may, where he or she experiences difficulty in effecting service under subregulation (2)(a), make an application to the Tribunal for leave to effect substituted service and such application shall be supported by an affidavit deposing as to the efforts that have been made to effect service.
(4) The Tribunal may, upon hearing the application, order that substituted service be effected on the applicant by delivery of a copy of the defence in full view of the applicant or by advertisement in a local newspaper circulating in the area where the applicant had his or her last place of residence or place of business.
(5) The respondent shall respond to the summons in writing, and such response shall—
(a) be divided into paragraphs, numbered consecutively and each paragraph shall contain as nearly as may be, a separate allegation; and
(b) contain a denial or admission to every allegation specifically or state that he or she has no knowledge concerning any allegation made:
Provided that any allegation not so dealt with in terms of this subregulation shall be taken to be admitted.
(6) The respondent shall, where he or she denies an allegation of fact, answer a point of substance and shall not be evasive.
(7) The Tribunal may require the complainant to prove any allegation not so dealt with under subregulation (5) so as to be proven otherwise than by such admission.
(8) Where a respondent fails to present a defence, the Tribunal shall deem the respondent to have waived his or her right to appear and participate in the proceedings, and the Tribunal shall proceed with the hearing ex parte.
(9) Notwithstanding the provisions of subregulation (5), the respondent may, within 14 days of delivery of a decision under regulation 16, make an application to rescind the decision of the Tribunal.
(10) An application made under subregulation (9) shall be supported by an affidavit showing sufficient cause why the respondent has failed to participate in the proceedings and shall provide his or her grounds of defence.
(1) Upon receipt of the defence in terms of regulation 6 (1), the complainant may prepare and submit to the Tribunal, a reply within seven days or such a period that the Tribunal may determine, after receipt of such defence.
(2) The complainant shall, where he or she denies an allegation of fact, answer the point of substance and shall not be evasive.
(1) Where a party to a complaint makes a claim—
(a) against a person who is not a party to the complaint (hereinafter called a “third party”), such party is entitled in respect of any relief claimed against him or her, to a contribution or indemnification from such third party; or
(b) that, the relief or remedy relating to the subject matter of the complaint is substantially the same as a relief or remedy claimed by the complainant, any question or issue in the complaint is substantially the same as a question or issue which has arisen or will arise between such party and the third party and should properly be determined not only as between the parties to the complaint but also as between such parties and the third party,
the party to the complainant may make an application to the Tribunal to present a notice (hereinafter referred to as a “third party notice”).
(2) An application under subregulation (1) shall be in writing and shall state the—
(a) name and address of the third party;
(b) nature of the claim made by the complainant;
(c) stage which the proceedings in the complaint have reached; and
(d) nature of the claim made by the applicant against the third party and its relation to the complainant’s claim against the applicant.
(3) Where—
(a) an application under subregulation (1) is received;
(b) the Tribunal is satisfied that the respondent’s claim against the third party is in respect of a matter referred to in subregulation (1); and
(c) having regard to all the circumstances of the complaint, it is reasonable and proper for the Tribunal to grant leave to the respondent to present a third party notice,
the Tribunal shall grant leave to the respondent to present a third party notice and any other order it deems necessary.
(4) A third party notice under subsection (3) shall be in Form D set out in Schedule 1, and shall state the—
(a) nature of the complainant’s claim against the respondent;
(b) nature of the respondent’s claim against the third party;
(c) relief claimed by the respondent against the third party;
(d) period within which the third party may present his or her defence; and
(e) consequences of the failure by the third party to present his or her defence within such period.
(5) The respondent shall serve the third party with the complainant’s complaint and any other documents in accordance with the procedure under regulation 5(2).
(6) Where a third party notice has been served, the third party shall, where he or she disputes the claim, present his or her defence in accordance with regulation 6 within 14 days of service of the notice.
(1) Where a third party has presented a defence, the Tribunal may—
(a) fix a date for the giving of directions; and
(b) on such date, if satisfied that there is a proper question to be heard as to the liability of the third party in respect of the claim made against him or her by the respondent, order the question of such liability to be heard in such manner, at or after the hearing of the complaint, as the Tribunal may direct.
(2) Where the Tribunal is not satisfied that there is a proper question to be heard under subregulation (1), the Tribunal shall dismiss the application and may order costs against the party presenting a third party notice.
10. Award against third party in default
(1) Where a third party—
(a) is in default in presenting his or her defence within the time specified under regulation 8(b); or
(b) having presented a defence, is in default in appearing on the date fixed for the giving of directions,
the party presenting a third party notice may apply ex parte to the Tribunal for an award against the third party in respect of any contribution, indemnity or relief claimed in the notice.
(2) The Tribunal may, on application by a party in terms of subregulation (1), issue an award against the third party in respect of any contribution, indemnity or relief claimed in the third party notice.
11. Consolidation of complaints or appeals
Where two or more complaints or appeals, arising from the same procurement process are instituted, the Tribunal may consolidate the matters and handle them as one matter.
12. Amendment to complaint and defence
(1) A party to any proceedings under these Regulations may, upon providing sufficient cause, apply in writing to the Tribunal to amend a complaint, defence or reply, within 14 days prior to the hearing of the complaint, defence or reply:
Provided that the other party to the proceedings shall be afforded an opportunity to make a response prior to the hearing.
(2) Any party to the proceedings shall, upon being allowed to amend a complaint, defence or a reply, amend such a complaint, defence or reply within seven days or such a period that the Tribunal may determine.
PART III
Hearing Procedure (regs 13-17)
(1) The hearing proceedings undertaken by the Tribunal shall be quasi-judicial in nature.
(2) The Tribunal shall, prior to a hearing, issue a summons in Form E set out in Schedule 1 to each party to the proceedings.
(3) The parties to the complaint shall appear in person during the hearing.
(4) The Tribunal may, during the hearing require—
(a) any person to produce any information the Tribunal considers relevant;
(b) the attendance of any person to give evidence; and
(c) any person to produce any document that may be in his or her custody.
(5) The evidence tendered by each party during the hearing shall be either under oath or affirmation.
(6) For the purpose of this regulation, “hearing” means all processes required for the Tribunal’s determination, including—
(a) oral and written submissions made by any party;
(b) evidence adduced by each party either oral or written; or
(c) virtual appearance.
(1) The Tribunal may, where either party without lawful excuse fails to attend to a hearing, enter such orders as are just, including but not limited to the following—
(a) an order rescheduling the hearing;
(b) an order dismissing a complaint or entering final judgement; or
(c) an order requiring the non-compliant party to pay the opposing party’s costs caused by the non-compliance.
(2) Where a respondent fails to appear when a complaint is called for hearing, and upon an application by a complainant, the Tribunal may issue an order for ex parte proof of the claim made by the complainant.
(1) The Tribunal may, where it deems it to be in the interest of a procurement complained of under these Regulations, suspend the procurement process of the particular project for a period not exceeding 30 days.
(2) The Tribunal may suspend a project under subregulation (1) where—
(a) the Accounting Officer has not made an award of the bid; or
(b) a letter has not been issued to the successful bidder indicating the commencement of the contract.
(3) Notwithstanding the provisions of subregulation (2), the Tribunal may suspend a procurement project where an aggrieved party has through an application, adduced sufficient evidence to demonstrate that the execution of such a contract—
(a) may cause substantial loss to public revenue; or
(b) will prejudicially affect the public interest.
(1) The Tribunal shall, within 21 days after conclusion of a hearing of the complaint or appeal—
(a) uphold a decision of the Accounting officer and dismiss the complaint;
(b) set aside the decision of the Accounting officer and order the procuring entity to—
(i) remit the proceedings to the procuring entity to be re-heard,
(ii) suspend the procurement process, or
(iii) cancel the procurement process; or
(c) provide for such other relief as may be deemed reasonable and necessary.
(2) The Tribunal shall, where an allegation of fraud or bias is proved, order any person found guilty by the Tribunal of the fraud or bias to be excluded from the procurement process.
(3) The Tribunal shall notify a complainant in writing, of its decision made in terms of this regulation, not later than three days after the decision is made.
(4) A decision of the Tribunal shall be published by notice in the Gazette.
(1) A party aggrieved by the decision of the Tribunal under these Regulations may within 30 days of the decision of the Tribunal, lodge an appeal with the High Court.
(2) Notwithstanding the provisions of subregulation (1), where an appeal brought in terms of subsection (1) is against Government, such party shall act in accordance with section 138 of the Act.
PART IV
General Provisions (regs 18-23)
(1) Subject to the provisions of these Regulations, the Tribunal may regulate its own proceedings.
(2) The Tribunal shall hold its first meeting on such a date and at such a place as the Minister may fix and thereafter the Tribunal shall hold meetings at least once in every three months, and other such meetings as are necessary for the efficient performance and exercise of it functions.
(3) There shall preside at any meeting of the Tribunal—
(a) the President; or
(b) in the absence of the President, the Vice-President.
(4) The quorum at any meeting of the Tribunal shall be a simple majority of the members.
(5) A decision of the Tribunal on any question shall be by the majority of the members present and voting at the meeting and, in the event of an equality of votes, the member presiding shall have a casting vote in addition to that member’s deliberative vote.
(6) The Tribunal may invite any person whose presence it deems necessary to attend and participate in the deliberations of a meeting of the Tribunal, but such person shall have no voting right.
(7) A decision of the Tribunal shall be recorded and where there is a dissenting decision, the dissenting decision shall be recorded and the reasons shall be recorded in the minutes of the proceedings.
The Tribunal may refer or report any aspect of its decision on any complaint or appeal to the Attorney General, the Directorate on Corruption and Economic Crime or any other authority for further action, where applicable.
(1) The Tribunal shall establish a register where a copy of all its decisions shall be kept.
(2) A person may examine and request to read any decision in the register without the payment of any fee.
(3) A person may make a copy of a decision in the register on payment of a fee set out in Schedule 2.
The Tribunal may order a complainant against whom liability has been established in a hearing, to pay such fine as the Tribunal may deem appropriate.
(1) Where a party has been awarded costs and wishes to recover the costs, he or she shall lodge a bill of cost for taxation, and the Registrar shall tax such bill.
(2) The Tribunal shall award costs only in relation to travelling, accommodation and filing of documents.
(3) Notwithstanding the provisions of subregulation (1), the bill of costs shall be filed with the Tribunal in writing, which shall include copies of the relevant evidence including payment vouchers, receipts or invoices.
(1) Any person who knowingly submits to the Tribunal any information or document that is false commits an offence and is liable to fine not exceeding P500 000 or to imprisonment for a term not exceeding five years, or to both.
(2) Any person who fails to comply with any order of the Tribunal under these Regulations commits an offence and is liable to a fine not exceeding P500 000 or to imprisonment for a term not exceeding five years, or to both.
Form A
(reg. 4(2))
COMPLAINT/APPEAL FORM
1. Details of the Complainant:
Name of Complainant Company or firm: …………………………………………………………………………
Address: ………………………………………………………………………………………………………………..
Physical Address: ……………………………………………………………………………………………………
City/Town/Village: …………………………………………………………………………………………………….
Telephone number: ……………………………………………………………………………………………………
Mobile telephone number: …………………………………………………………………………………………..
E-mail address: ………………………………………………………………………………………………………..
2. Details of procuring entity
Name: ……………………………………………………………………………………………………………………
Address: …………………………………………………………………………………………………………………
Physical Address: ……………………………………………………………………………………………………..
Telephone: ……………………………………………………………………………………………………………….
Procurement number: ………………………………………………………………………………………………….
Description of project or goods being tendered:
………………………………………………………………………………………………………………………………
………………………………………………………………………………………………………………………………
………………………………………………………………………………………………………………………………
Approximate value of tender: …………………………………………………………………………………………
Tendering timetable-
when tenders were invited: ……………………………………………………………………………………………
Closing date for tender: ………………………………………………………………………………………………..
Date contract awarded (if applicable): ………………………………………………………………………………
3. Description of complaint and statement of what complainant thinks would be a reasonable solution to the complaint:
……………………………………………………………………………………………………………………………….
……………………………………………………………………………………………………………………………….
……………………………………………………………………………………………………………………………….
4. Documents submitted in support of complaint:
……………………………………………………………………………………………………………………………….
……………………………………………………………………………………………………………………………….
……………………………………………………………………………………………………………………………….
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Signed by |
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……………………………………………………………………………………………………………………………… |
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Signature of |
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Company date stamp: |
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Done under my hand at …………………………… this …………. day of ……………. year …………. |
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Commissioner of Oaths ……………………………………………….. Date stamp |
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For official use only |
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Received by: ………………………………….. |
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Public Procurement Tribunal Date Stamp: |
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Form B
(reg. 5(1))
SUMMONS
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Complaint Number ………………………………….. |
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1. ………………………………………………………………… – COMPLAINANT/APPELLANT |
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2. ………………………………………………………………… – RESPONDENT |
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SUMMONS TO FILE A DEFENCE |
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TARE NOTICE that ………………………………………. (“the complainant”) of address ……………………… has lodged a complaint or appeal against you with the Public Procurement |
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Tribunal (“the Tribunal”), details of which are attached herewith. |
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PURSUANT to regulation 5 of the Public Procurement (Tribunal) Regulations, you are required to submit to the Tribunal, within 14 days from the date of this notice, a written reply to the complaint together with all relevant documents you will rely upon in support of your defence. A copy of the reply shall be served to the complainant. |
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TAKE FURTHER NOTICE that failure to submit a reply within the stipulated period will imply that you have waived your right to be heard and the Tribunal shall proceed to determine the matter in your absence. |
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GIVEN under seal of the Tribunal this………………………… day of ……………….. 20……… |
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……………………………………………………………………. |
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COPY TO BE SERVED UPON: |
RECEIVED BY: |
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……………………………………… |
…………………. |
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……………………………………… |
…………………. |
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……………………………………… |
…………………. |
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……………………………………… |
…………………. |
Form C
(reg. 6(1))
INTENTION TO DEFEND
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Complaint Number ………………………………….. |
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1. ………………………………………………………………… – COMPLAINANT/APPELLANT |
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2. ………………………………………………………………… – RESPONDENT |
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TAKE NOTICE that the Respondent intends to defend this matter. |
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TAKE FURTHER NOTICE that the grounds on which the Respondent intends to rely upon are as follows; |
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………………………………………………………………………………………………………………………… |
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………………………………………………………………………………………………………………………… |
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………………………………………………………………………………………………………………………… |
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………………………………………………………………………………………………………………………… |
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………………………………………………………………………………………………………………………… |
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………………………………………………………………………………………………………………………… |
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DATED at ………………………………… this………………………… day of ………………….. 20……… |
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Address: …………………….. |
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To: Complainant: …………………………. |
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Address: ………………………………. |
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………………………………. |
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And to: The Registrar |
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Address: ………………………………. |
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………………………………. |
Form D
(reg. 8(4))
THIRD PARTY NOTICE
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Complaint Number ………………………………….. |
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1. ………………………………………………………………… – COMPLAINANT/APPELLANT |
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2. ………………………………………………………………… – RESPONDENT |
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3. ………………………………………………………………… – THIRD PARTY |
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TO THE ABOVE-NAMED THIRD PARTY: |
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TAKE NOTICE that the above-named complainant has commenced proceedings against the above-named respondent for the relief set out in a summons, a copy of which is herewith served on you. |
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The above-named respondent claims a contribution or indemnification (or such other grounds as may be sufficient to justify a third-party notice) on the grounds set forth in the annexure hereto. |
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If you dispute those grounds or if you dispute the claim of the complainant against the respondent, you may give notice of your intention to defend within 14 days. Such notice shall be in writing and filed with the Tribunal, and a copy thereof served on the above-named respondent at the address set out at the foot of this notice. |
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Dated at ………………………………… this………………………… day of ………………….. 20……… |
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Address: …………………….. |
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To: Complainant: …………………………. |
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Address: ………………………………. |
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………………………………. |
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And to: Respondent |
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Address: ………………………………. |
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………………………………. |
Form E
(reg. 13(2))
SUMMONS TO APPEAR
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Complaint Number ……………………/20…… |
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1. ………………………………………………………………… – COMPLAINANT |
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2. ………………………………………………………………… – RESPONDENT |
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NOTICE OF DATE OF HEARING |
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TAKE NOTICE that the above complaint has been fixed for hearing on the …………………… day of …………………. 20………………at……………….. hours before the Tribunal. |
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YOU ARE hereby required to appear in person without fail, and submit to the other party and the Tribunal all evidence you intend to rely on in defending your case before ………………………………… day of …………….. 20……. You may also wish to bring witnesses if any. |
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GIVEN under the seal of the Tribunal this ……………………. day of ………………….. 20……… |
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…………………………………………………………………… |
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COPY TO BE SERVED UPON: |
RECEIVED BY: |
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……………………………………… |
…………………. |
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……………………………………… |
…………………. |
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……………………………………… |
…………………. |
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……………………………………… |
…………………. |
(regs. 4(3) and 19(3))
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Fee |
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Lodging of complaint or appeal Complaint |
P500 |
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Complaint’s financial bid submission |
Percentage to be paid of complaints financial bid submission (%) |
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P10 million and below |
0,5 |
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Between P10 million and P50 |
0.75 |
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P50 million |
1 |
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Except that in no case shall the complaint fee paid be less than P5 000 or more than P5 000 00 and where there is no tendered total sum, the applicable complaint fee shall be based on the procuring entity’s budget for the project, but still applying the financial thresholds and percentages. |
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Copy of Tribunal decision per page |
P3 |
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Attendance of court/per hour |
P100 |
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PUBLIC PROCUREMENT (NATIONAL ELECTRONIC PROCUREMENT) REGULATIONS
(30th June, 2023)
(section 150)
ARRANGEMENT OF REGULATIONS
REGULATION
1. Citation
2. Interpretation
3. Application
4. Objective of NePS
5. Registration of suppliers
6. User creation
7. Preparation of tender
8. Advertising of tender
9. Auction
10. Submission of tender
11. Opening of tender
12. Adjudication and award of tender
13. Signing of contract
14. Tender submission extension
15. Electronic signature, encryption and decryption
16. Certification and payment
17. Handling of complaint by contractor
18. Catalogue items
19. Management of demand
20. Management of supplier
21. Quotations
22. Management of contract
23. Evaluation of supplier
24. Procurement planning
25. E-payment
26. Unavailability of system
27. Uploading tender document
28. Amendment of tender document
29. Withdrawal of bid
30. Contract negotiation
31. Audit trail
32. Records
33. Confidentiality
34. Common procurement vocabulary
35. Procurement request
36. Cancellation of tender
37. Availability of funds and procedure with suspension clause
S.I. 75, 2023.
These Regulations may be cited as the Public Procurement (National Electronic Procurement) Regulations.
In these Regulations, unless the context otherwise requires—
“authorised personnel” means an individual who has been granted a specific legal or regulatory authority to perform certain actions or access certain areas, information or resources;
“award” means a decision by the Accounting Officer, or any person to which the Accounting Officer may delegate powers of adjudication and award a tender within specified financial limits, to determine the successful bidder;
“call off order” means an order placed by a procuring entity under general terms and pricing on a range of goods under a framework contract, without having to negotiate the terms every time;
“common procurement vocabulary” means a standardised classification system for public procurement activities;
“designated official” means an individual who has been formally designated by an organisation, government agency, or regulatory body, to be responsible for a specific duty or activity related to compliance with legal and regulatory requirements;
“forward auction” means a type of auction which a buyer competes to purchase goods or services from a seller, where the buyer is motivated to bid higher in order to outcompete another potential buyer and secure an item being auctioned;
“Government Data Centre” means a centre responsible for government information system and network;
“guidelines” means any advice given by the Authority through any circular that may be issued to the procuring entities in accordance with section 8(1)(j) of the Act;
“legal frame” means the legal framework that governs a particular activity or situation;
“NePS” means the National eProcurement System;
“NePS support team” means a group of professionals who provide technical support, maintenance and troubleshooting services for NePS;
“non-complex procurement” means the procurement of goods, services, or works that are relatively straightforward and do not require extensive technical expertise;
“procurement method” means the procurement method provided under section 52 of the Act;
“procurement process” means the successive stages in the procurement cycle including planning, choice of procedure, measures to solicit offers from bidders, examination and evaluation of such offers, award of a contract and contract management;
“public procurement stakeholder” means a person who has an interest in or is affected by the public procurement activities of an organisation;
“records” means any documents or information relating to any stage of a procurement process and includes—
(a) an electronic or manual archive containing the document or information relating to a procurement process; or
(b) a record received or kept by a public body, in the exercise of its functions;
“statement of requirement” means a document prepared by a procuring entity providing a correct and competitive description of the subject of the procurement for the purposes of creating a fair and open competition;
“third party” means an individual, organisation or entity that is not directly involved in a particular transaction; and
“user” means a procuring entity, system administrator, auditor, civil society organisation or any other user as may be approved by the Authority.
(1) A procuring entity may carry out its procurement activity using the National eProcurement System.
(2) Where a procuring entity uses the NePS, the procuring entity shall implement the NePS in full.
(3) Notwithstanding subregulation (2), where the NePS is still being implemented, the procuring entity shall partially implement the NePS in parallel with the conventional manual procedure of procurement.
(4) A public procurement stakeholder shall upon successful registration have appropriate access to the relevant features of the NePS as may be determined by the Minister.
(5) The NePS shall consist of several modules, sub-systems including interlinked sub-systems, which shall be used individually or in combination, in order to accomplish a function relating to an e-procurement related process.
(1) The objective of the NePS is to enhance efficiency and transparency in public procurement through the implementation of a comprehensive electronic public procurement solution to be used by any procuring entity.
(2) The use of the NePS shall only be for a lawful purpose that does not infringe the rights of or restrict or inhibit the use of the system by any third party.
(3) The restriction or inhibition under subregulation (2) may include—
(a) conduct which—
(i) is intended to mislead,
(ii) is defamatory, or
(iii) may cause distress or inconvenience to any person;
(b) the transmission of obscene or offensive content; or
(c) the interruption of the normal flow of content within the NePS.
(4) The Government Data Centre shall host the NePS and the NePS’s web portal shall be accessible for use through a specified web URL.
(5) A person may, upon successful registration, get access to the NePS.
(6) The information obtained from the NePS shall be in accordance with—
(a) specified terms and conditions of use; and
(b) a disclaimer and privacy policy.
(1) The Authority shall be responsible for—
(a) all aspects of the management of contractor registration;
(b) any decision relating to an application for registration;
(c) the re-classification of registered contractors; and
(d) any other decision related to contractor registration.
(2) The Authority shall interface the registration of small, medium and micro enterprises with any system of the relevant authority responsible for a supplier.
(1) An Accounting Officer shall authorise the creation of a user in the NePS to enable the user to perform any procurement activity.
(2) The office of the Accounting Officer shall be responsible for the authorisation of the creation of system administrators in the NePS.
(3) The creation of a user under subregulation (1) shall be followed by an online verification or validation of documents through due diligence in accordance with the Data Protection Act (Act No. 32 of 2018) as the Authority may deem fit.
(1) A procuring entity may perform its procurement activity through the NePS.
(2) A procuring entity which performs its procurement activity through the NePS shall prepare a tender document or a procurement notice through the NePS.
(3) Where the NePS fails to handle characters or graphical files, the procuring entity may scan a tender document and such document shall be in the form of a scanned electronic document.
(4) A date for a Tender Notice published in the Gazette and NePS by the procuring entity portal shall be treated as the start date of the tender.
(5) Where specified in the Tender Notice, the NePS shall provide details or features for online pre-tender meetings.
(6) An Accounting Officer shall through the NePS, vet the tender document and the Tender Notice.
(7) The electronic preparation of a bid shall remain in the NePS in an encrypted form accessible only to the bidder preparing the bid.
(1) A procuring entity shall publish an invitation for a tender in the Gazette, in a newspaper of national circulation, electronic media or Government portal and in the NePS in accordance with these Regulations.
(2) The invitation prepared by a procuring entity shall contain a detailed description of the works, services or supplies, time-schedule and any other conditions of the tender.
(3) A procuring entity shall make a tender document available on the NePS for a contractor to view and consider participation.
(4) A contractor shall submit a request for clarification or a response to a query through the NePS within the time set out in a tender document.
(1) A procuring entity may auction goods electronically through the NePS.
(2) The Authority shall issue guidelines on the procedure to be followed and other applicable conditions for conducting an auction through the NePS.
(3) Where a procuring entity wishes to conduct procurement by auction, the procuring entity shall specify whether the auction is a reverse or forward auction.
(4) A procuring entity shall use an electronic reverse auction in the procurement of standard goods for which specifications may be determined with precision where—
(a) price or quantity is the only determinant; and
(b) there exists a significant number of potential bidders.
(5) A procuring entity shall use an electronic reverse auction as a procurement method for non-complex procurement.
(6) Where a contractor is to be pre-qualified before any auction, a procuring entity shall conduct a pre-qualification process online in the system, or offline in accordance with the Act.
(7) An electronic reverse auction award shall be based on ranking of prices such that a tender is awarded at the lowest price to the corresponding qualified bidder in case of purchase.
(8) A bidder shall automatically and instantaneously be informed through the NePS of the new rankings as the rankings occur, together with the price in such manner that the bidder is able to ascertain such bidder’s ranking at any moment.
(9) A procuring entity shall ensure that the identity of a bidder is not disclosed or identified by any party during any phase of any auction.
(1) The submission of a tender shall be as set out in Part VII of the Public Procurement Regulations (S.I. No. 23 of 2023).
(2) A tender shall bear an electronic signature or a handwritten signature for identity and authentication.
(3) A procuring entity shall allow a reasonable time for a bidder to decrypt and re-encrypt his or her bid after the closing date and time for submission of a bid.
(4) A bid submitted through the NePS shall represent an offer from a contractor.
(5) A bidder shall submit the bid within the specified tender closing time and date.
(1) A procuring entity shall open a tender on the NePS in accordance with this regulation.
(2) A procuring entity shall—
(a) open an electronic bid in a manner stated in the bidding document; and
(b) prepare a bid opening report.
(3) A bidder or his or her representative who wishes to witness a tender opening may virtually be present at the tender opening meeting.
(4) A procuring entity shall publish the bid opening records in the appropriate section of the NePS.
12. Adjudication and award of tender
A procuring entity shall adjudicate and award a tender in the NePS in accordance with the Public Procurement Regulations.
(1) The signing of a contract by a bidder shall be in accordance with Part VIII of the Public Procurement Regulations.
(2) An electronic signature shall be required for the security and integrity of data transmission.
(3) Where a bidder fails to electronically sign a contract in the NePS, he or she may sign the contract manually.
14. Tender submission extension
A procuring entity shall extend the submission period of a tender on the NePS in accordance with the Public Procurement Regulations.
15. Electronic signature, encryption and decryption
(1) A procuring entity shall—
(a) sign a bidding document and bid data before the bidding document and bid data are published; and
(b) release data in respect of the bids received.
(2) A contractor shall sign a bid and bid data before submitting the bidding document through the NePS.
(3) A party using the NePS to submit the bidding document shall be bound by the transaction processed through the NePS.
(1) A procuring entity shall use standard forms generated from the NePS for issuing different types of certifications, including completion certificate, acceptance certificate, quality certificate, and any other relevant documents as may be determined by the Authority.
(2) Prior to authorising the payment of an invoice, a procuring entity shall verify receipt of supplies, performance of services or execution of works in accordance with the contract.
17. Handling of complaint by contractor
(1) A complaint by a contractor shall be dealt with in accordance with sections 104, 105 and 106 of the Act.
(2) The Tribunal shall facilitate all communications relating to disputes for expedient and transparent resolution of any such matter arising out of the e-procurement carried out over the NePS.
(1) A catalogue shall contain a list of essential and common user items as may be determined by a procuring entity.
(2) A procuring entity shall, by the end of December of each year, submit to the Government Procurement Office or any other office designated in terms of the Act, annual estimates of the required catalogue items including descriptions, specifications, statement of requirements and quantities.
(3) The Government Procurement Office or any other office designated shall arrange for procurement of catalogue items which are—
(a) required continuously or repeatedly over a set period of time; and
(b) common to more than one procuring entity and may be procured through framework agreements by placing call-off orders.
(4) A procuring entity shall place an order directly with a contracted service provider for any item included in the price catalogue within one working day after reaching the buffer stock.
(5) Where a catalogue item requested to be purchased by the procuring entity is not available, the Government Procurement Office or any other designated office shall, within one working day and upon receipt of the request, issue a non-availability notice to the procuring entity.
(6) Where the Government Procurement Office or any other designated office receives the non-availability notice under subregulation (5), the Government Procurement Office or the designated office may opt for another alternative source of supply.
(7) The Government Procurement Office or any other designated office shall procure non-catalogue items for use by a procuring entity from a supplier awarded a framework agreement through placing of a call-off order.
(8) The non-catalogue items under subregulation (7) shall be subjected to competition.
(9) The Government Procurement Office or any other office designated may procure a catalogue and a non-catalogue item from any prequalified source if the item meets the required standards, and is available at a competitive price.
(10) The NePS shall provide for the generation of a report showing common use items across Ministries as per the threshold set by the Government Procurement Office.
(1) An authorised personnel shall generate an order on the NePS, and the demand shall be managed in accordance with the Public Finance Management Act (Cap. 54:01).
(2) The Minister shall issue a policy to guide on acquisition of selective procurement and the procuring entity’s thresholds.
The NePS shall have features for supplier management including—
(a) supplier registration whether active, deactivated, suspended or delisted;
(b) supplier selection or rotation;
(c) supplier performance evaluation;
(d) end of activity report; and
(e) any other functionality as may be determined by the Minister.
The process for a quotation shall be carried out in the NePS and shall be in accordance with the standard bidding documents appropriate for such process.
(1) A procuring entity shall manage contracts in the NePS in accordance with Part XI of the Public Procurement Regulations.
(2) The procuring entity shall nominate an individual who has the required knowledge, skills and ability to effectively carry out his or her responsibilities by using the dashboard provided in the NePS and to manage contracts.
(3) The Authority shah prepare a procedure on how a contract shall be monitored and controlled online.
(4) The procuring entity shall enter any contract information into the NePS, during and after the implementation of the contract for the purpose of —
(a) records and reporting; or
(b) assessing and determining any deviation from the terms and conditions of the contract.
(5) The NePS shall provide a tracking feature for all the contract agreements.
(6) A designated official shall in order to make a decision during the administration of a contract agreement, check the—
(a) contract status;
(b) contracted parties;
(c) contract period;
(d) supplies;
(e) works or services covered; and
(f) contract points.
(7) Where a contract needs to be amended, the NePS shall show an auto alert for the required action.
(8) The designated official shall record an appropriate reason before any amendment under subregulation (7) is made.
(9) A procuring entity shall base the contract management on the workflow process configured for the procuring entity.
(1) The NePS shall have a feature to evaluate and monitor a supplier’s performance based on the criteria set out in the Public Procurement Regulations.
(2) A procuring entity may—
(a) conduct supplier evaluation and performance evaluation; and
(b) produce a report to the Accounting Officer and the Authority.
(3) The Authority may conduct monitoring and evaluation of the supplier’s contract or awarded tender through the NePS.
(1) A procuring entity may use the NePS to prepare an annual strategic procurement plan for a procuring unit.
(2) The head of a procuring unit shall prepare and submit a consolidated annual strategic procurement plan to the Accounting Officer for approval prior to the commencement of the financial year and the plan shall be implemented in accordance with the timelines set out in the plan.
(3) The Accounting Officer shall publish the annual strategic procurement plan in the NePS prior to the commencement of the financial year in accordance with section 71(b) of the Act.
(4) The Accounting Officer—
(a) may review and update the annual procurement plan quarterly; and
(b) shall on a quarterly basis review compliance and submit adherence reports to the Authority.
(5) The NePS shall provide a procurement plan monitoring feature.
The NePS shall have a feature for e-payment using different payment platforms in line with written laws.
(1) The NePS support team shall ensure that the NePS is always available for use unless under maintenance or there are unforeseen circumstances which may render the NePS unavailable.
(2) Where the NePS is offline or unavailable due to unforeseen circumstances, the Accounting Officer and the NePS support team shall assess the circumstances.
(3) The unforeseen circumstances under subregulation (2) shall be handled as follows—
(a) at the stage of preparation for invitation to tender, a procuring entity shall wait until the system has recovered and thereafter transmit the electronic tender documentation;
(b) at the stage of acquiring the tender documentation, a contractor shall—
(i) make a request of the tender documentation using other means provided, or
(ii) wait until the system has recovered, and proceed to make an electronic acquirement of the tender documentation, and the entity may, by taking into consideration the extent to which an individual case is affected, publish a notice to extend the time-limit tendering;
(c) at the stage of submission of a tender a bidder shall—
(i) submit his or her tender using other means provided by the tender documentation, or
(ii) wait until the system has recovered and then proceed to make an electronic submission of the tender, and the entity may, by taking into consideration the extent to which an individual case is affected, publish a notice to extend the tender closing date;
(d) at the stage of opening of a tender, the procuring entity shall—
(i) wait until the system has recovered and then proceed to open the tender, or
(ii) defer opening of the tender, and an exception of this provision shall be given where it is certain that there exists no electronic tender;
(e) under an exceptional case, the tender may be cancelled; or
(f) any other option as may be deemed relevant by the Accounting Officer.
(4) Where the NePS is offline due to maintenance, the NePS support team shall inform the NePS users—
(a) before system downtime;
(b) the expected maintenance duration and the expected uptime; and
(c) when the NePS is back online.
(1) The NePS shall have a feature to support uploading of different types of document formats as per the requirements, except executable files.
(2) The uploaded documents shall have audit trail records.
28. Amendment of tender document
A procuring entity or bidder shall make an amendment to a tender document on the NePS in accordance with regulation 56 of the Public Procurement Regulations.
A procuring entity or bidder shall make a withdrawal of a bid document in accordance with Part VII of the Public Procurement Regulations.
(1) A contract negotiation shall be done in accordance with Part VIII of the Public Procurement Regulations.
(2) A contract negotiation may be conducted online or in person if applicable to a specific procurement type or category in accordance with the requirements of the Act.
(3) The results of a contract negotiation under subregulation (2) shall be entered in the NePS in accordance with the Public Procurement Regulations.
(1) The NePS shall provide an end-to-end audit trail feature that shows a record or trace of any activity in the procurement process.
(2) The Authority shall conduct a regular internal audit of a procurement process.
(3) A procurement activity financed by the Government shall be subject to an audit conducted by the Auditor General to ensure that—
(a) funds are expended for their intended purpose;
(b) value for money is maximised;
(c) a proper and accountable system is in place and adhered to; and
(d) any weakness in the procurement process is identified.
(4) The Auditor General’s procurement audit report shall be presented annually to the Minister for his or her information and endorsement.
(5) An employee of a procuring entity involved in any procurement process shall cooperate with and disclose information to auditors, evaluators and any other authority conducting an audit or monitoring, and evaluation reviews in accordance with the Act.
A procuring entity shall keep records in accordance with any applicable laws.
A procuring entity shall maintain confidentiality in accordance with any applicable laws.
34. Common procurement vocabulary
There shall be a common procurement vocabulary for every category and subcategory of works, services and supplies.
(1) Where the NePS is in place, a procuring entity may submit all procurement requirements through the NePS.
(2) A procuring entity may, as far as possible, manage all procurement requests through the NePS.
A procuring entity shall carry out cancellation of a tender process in accordance with Part VII of the Public Procurement Regulations.
37. Availability of funds and procedure with suspension clause
(1) A procuring entity shall not launch a call for proposals and bidding procedures without a specific budgetary allocation approved, and funds shall be available before initiating any procedure.
(2) A procuring entity shall not award or sign a contract without the adoption of the financing decision and the legal frame.
(3) A bidding document or guidelines of a bidder shall contain a suspension clause providing that the process may be suspended in the case of non-availability of funding.
(4) Where the financing agreement or the legal frame is not signed the procuring entity shall cancel the bid.