LOCAL AUTHORITIES PROCUREMENT AND ASSET DISPOSAL: SUBSIDIARY LEGISLATION

INDEX TO SUBSIDIARY LEGISLATION

Local Authorities Procurement and Asset Disposal Regulations

LOCAL AUTHORITIES PROCUREMENT AND ASSET DISPOSAL REGULATIONS

 

(section 46)

 

(10th July, 2009)

 

ARRANGEMENT OF REGULATIONS

 

   REGULATION

 

 

 

PART I
Preliminary

 

   1.   Citation

 

   2.   Interpretation

 

   3.   Application of Regulations

 

   4.   Procedure on disputes to application

 

   5.   International obligations

 

 

 

PART II
Functions and Powers of Procuring and Disposing Entity

 

   6.   Responsibility of procuring and disposing entity

 

   7.   Functions of procuring and disposing entity

 

   8.   Powers of procuring and disposing entity

 

   9.   Procedure in case of disagreement

 

 

 

PART III
Public Procurement Rules and Processes

 

   10.   Preference and reservation

 

   11.   Records for inspection

 

   12.   Contents of procurement records

 

   13.   Contents of contract management records

 

   14.   Safe keeping of documents

 

   15.   Communication

 

   16.   Process of procurement

 

   17.   Cancellation of procurement process

 

   18.   Contents of work plan

 

   19.   Matters to be considered in planning

 

   20.   Aggregation of requirements

 

   21.   Splitting of requirements

 

   22.   Division into lots

 

   23.   Common procurement by procuring and disposing entity

 

   24.   Common procurement by local authorities

 

   25.   Approval arrangements under common procurement

 

   26.   Initiation of procurement requirement

 

   27.   Availability of funds

 

   28.   Confirmation of funding

 

   29.   Subcontracting

 

 

 

PART IV
Choice of Procurement Methods

 

   30.   Procurement methods

 

   31.   Open domestic bidding

 

   32.   Open international bidding

 

   33.   Restricted domestic bidding

 

   34.   Restricted international bidding

 

   35.   Quotation proposal procurement

 

   36.   Micro procurement

 

   37.   Direct procurement

 

   38.   Emergency situations

 

 

 

PART V
Bidding Process

 

   39.   Method for selection of bidders

 

   40.   Bid notices

 

   41.   Shortlist of bidders

 

   42.   Selection of single or sole bidder

 

   43.   Pre-bid meetings

 

   44.   Bidding packages

 

   45.   Clarification and amendment of bidding packages

 

   46.   Bidding period

 

   47.   Minimum bidding period

 

   48.   Format of bids

 

   49.   Bid validity

 

   50.   Bid security

 

   51.   Bid currency

 

   52.   Bid submission methods

 

   53.   Withdrawal, etc., of bids

 

   54.   Receipt of bids by local authority

 

   55.   Receipt of bids in person and bid closing

 

   56.   Receipt of bids by bid box and bid closing

 

   57.   Bid opening

 

   58.   Procedure for bid opening

 

   59.   Record of bid opening

 

   60.   Single or limited bid responses

 

   61.   Complaints on bidding process

 

 

 

PART VI
Evaluation Process

 

   62.   Evaluation

 

   63.   Evaluation criteria

 

   64.   Compliance and responsiveness to bids

 

   65.   Change to bid details

 

   66.   Material and non-material deviation

 

   67.   Stages of evaluation

 

   68.   Preliminary examination

 

   69.   Detailed evaluation

 

   70.   Financial comparison

 

   71.   Evaluation methodologies

 

   72.   Quality and cost based selection

 

   73.   Quality based selection

 

   74.   Fixed budget selection

 

   75.   Least cost selection

 

   76.   Technical compliance selection

 

   77.   Evaluation report

 

   78.   Post-qualification criteria

 

   79.   Procedure for negotiations

 

   80.   Award of contract

 

   81.   Public notice of best evaluated bidder

 

 

 

PART VII
Contract Management

 

   82.   Types of contracts

 

   83.   Lump sum contract

 

   84.   Time based contract

 

   85.   Admeasurement contract

 

   86.   Framework contract

 

   87.   Percentage contract

 

   88.   Cost reimbursable contract

 

   89.   Target price contract

 

   90.   Retainer contract

 

   91.   Contingency or success fee contract

 

   92.   Other contracting arrangements

 

   93.   Contract pricing

 

   94.   Price adjustment

 

   95.   Payment terms

 

   96.   Payment method

 

   97.   Payment structure

 

   98.   Advance payment

 

   99.   Interim and stage payment

 

   100.   Retained payment

 

   101.   Payment security

 

   102.   Payment document

 

   103.   Payment to contractor

 

   104.   Payment period

 

   105.   Payment and payment delays

 

   106.   Currency of payment and exchange rate movements

 

   107.   Variation or change order

 

   108.   Contract amendment

 

   109.   Termination of contract

 

 

 

PART VIII
Procurement of Supplies

 

   110.   Standardisation policy

 

   111.   Statement of requirements for supplies

 

   112.   Use of brand name

 

   113.   Bidding packages for supplies

 

   114.   Types of contract under supplies

 

   115.   Scope of contract for supplies

 

   116.   Delivery terms under supplies

 

   117.   Insurance for supplies

 

   118.   Inspection and testing

 

 

 

PART IX
Procurement of Works

 

   119.   Statement of requirements for works

 

   120.   Bidding packages for works

 

   121.   Evaluation for works

 

   122.   Types of contracts for works

 

   123.   Scope of contract for works

 

   124.   Insurance and indemnity for works

 

   125.   Transfer of property for works

 

 

 

PART X
Procurement of Services

 

   126.   Statement of requirements for services

 

   127.   Bidding packages for services

 

   128.   Availability of staff

 

   129.   Evaluation for services

 

   130.   Types of contracts for services

 

   131.   Insurance and indemnity for services

 

   132.   Property for services

 

 

 

PART XI
Disposal of Public Assets

 

   133.   Disposal planning

 

   134.   Initiation of disposal requirements and approval of disposal

 

   135.   Methods of disposal

 

   136.   Public auction

 

   137.   Public bidding

 

   138.   Sale to public officials

 

   139.   Direct negotiation

 

   140.   Trade-in

 

   141.   Transfer to another local authority

 

   142.   Conversion or classification into another form

 

   143.   Destruction of assets

 

   144.   Valuation

 

   145.   Description of assets

 

   146.   Solicitation of bids

 

   147.   Bidding packages for disposal

 

   148.   Inspection of assets

 

   149.   Evaluation under the disposal process

 

   150.   Rebidding due to identical bids

 

   151.   Evaluation based on price only

 

   152.   Evaluation based on price and other factors

 

   153.   Negotiations

 

   154.   Failure to reach the reserved price

 

   155.   Award of contract for disposal

 

   156.   Signature of contracts

 

 

 

      Schedule

 

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

PART I
Preliminary (regs 1-5)

 

1.   Citation

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

 

2.   Interpretation

   In these Regulations, unless the context otherwise requires-

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

   "best practices" means the applicable industry standards;

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

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

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

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

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

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

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

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

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

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

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

   "guidelines" means directives issued by the Competent Authority;

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

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

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

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

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

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

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

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

   "registered contractor" means a contractor registered under the register maintained under section 116 of the Public Procurement and Asset Disposal Act by the Public Procurement and Asset Disposal Board; and

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

 

3.   Application of Regulations

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

 

4.   Procedure on disputes to application

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

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

 

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

 

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

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

   (4) The decision shall indicate-

 

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

 

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

 

5.   International obligations

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

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

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

 

6.   Responsibility of procuring and disposing entity

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

 

7.   Functions of procuring and disposing entity

   A procuring and disposing entity shall-

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

      (ii)   preparing the statement of requirements,

 

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

 

      (iv)   costing the bid or disposal activity,

 

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

 

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

 

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

 

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

 

   (g)   execute the decision of the Adjudication Committee;

 

   (h)   prepare and issue contracts;

 

   (i)   administer and manage the contract once placed;

 

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

 

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

 

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

 

8.   Powers of procuring and disposing entity

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

 

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

 

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

 

   (c)   manage the issuance of the variation or change order; and

 

   (d)   certify invoices for progress payment.

 

9.   Procedure in case of disagreement

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

 

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

 

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

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

 

10.   Preference and reservation

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

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

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

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

 

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

 

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

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

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

 

   (a)   local procurement;

 

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

 

   (c)   such other preferences as a local authority may determine.

 

11.   Records for inspection

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

 

   (a)   records of the procurement and disposal process;

 

   (b)   records of contracts management;

 

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

 

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

 

12.   Contents of procurement records

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

 

   (a)   a request to initiate procurement proceedings;

 

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

 

   (c)   a copy of the pre-qualification and bidding documents and any amendments or clarifications;

 

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

 

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

 

   (f)   the evaluation report and adjudication report;

 

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

 

   (h)   the notice of best evaluated bidder;

 

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

 

   (j)   the contract document;

 

   (k)   any contract amendments;

 

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

 

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

 

      (i)   the choice of procurement method,

 

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

 

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

 

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

 

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

 

13.   Contents of contract management records

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

14.   Safe keeping of documents

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

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

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

 

   (a)   original security;

 

   (b)   original performance security;

 

   (c)   advance payment guarantee or security;

 

   (d)   a stage payment guarantee or security;

 

   (e)   a retained payment guarantee or security;

 

   (f)   any other payment guarantee or security;

 

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

 

   (h)   a Power of Attorney;

 

   (i)   original signed contracts;

 

   (j)   original signed contract amendments;

 

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

 

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

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

 

15.   Communication

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

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

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

 

16.   Process of procurement

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

 

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

 

   (b)   pre-qualification documents prior to issue;

 

   (c)   bidding documents and any amendments prior to issue;

 

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

 

   (e)   cancellation of any procurement process;

 

   (f)   contract documents prior to issue; and

 

   (g)   contract amendments prior to issue.

 

17.   Cancellation of procurement process

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

 

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

 

   (b)   detailed reasons why cancellation is recommended;

 

   (c)   the stage of the procurement process reached;

 

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

 

   (e)   any other relevant information.

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

 

   (a)   lack of adequate funding;

 

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

 

   (c)   where there is no longer a need for the subject of the procurement;

 

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

 

   (e)   a lack of responsive bids.

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

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

 

18.   Contents of work plan

   The combined work plan for a local authority shall include-

 

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

 

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

 

   (c)   a statement of resources required, supported by a schedule of the likely availability of funding;

 

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

 

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

 

19.   Matters to be considered in planning

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

 

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

 

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

 

   (c)   common procurement of common user items among departments;

 

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

 

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

 

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

 

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

 

20.   Aggregation of requirements

   Requirements shall be aggregated, but not excessively, for-

 

   (a)   all departments of a local authority; and

 

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

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

 

   (a)   the market structure for the items required;

 

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

 

   (c)   the optimum size and type of contract to attract the greatest and most responsive competition or the best price;

 

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

 

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

 

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

 

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

 

21.   Splitting of requirements

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

 

   (a)   a particular method of procurement; or

 

   (b)   the benefits of scale.

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

 

22.   Division into lots

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

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

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

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

 

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

 

   (b)   the nature and size of each lot;

 

   (c)   the minimum and maximum number of lots, if any, for which a bidder may bid;

 

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

 

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

 

23.   Common procurement by procuring and disposing entity

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

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

 

24.   Common procurement by local authorities

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

 

   (a)   the availability of individual budgets;

 

   (b)   the payment for requirements delivered; and

 

   (c)   the conclusion of the optimal contract, including the delivery arrangements.

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

 

25.   Approval arrangements under common procurement

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

   (2) Local authorities may agree on-

 

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

 

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

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

 

26.   Initiation of procurement requirement

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

 

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

 

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

 

   (c)   confirmation of availability of funding; and

 

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

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

 

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

 

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

 

   (c)   the confirmation of availability of funding takes into account the total acquisition cost.

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

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

 

27.   Availability of funds

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

 

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

 

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

 

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

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

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

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

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

 

28.   Confirmation of funding

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

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

 

29.   Subcontracting

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

 

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

 

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

 

   (c)   the information required in the bid relating to subcontractors;

 

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

 

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

 

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

 

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

 

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

 

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

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

 

30.   Procurement methods

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

 

   (a)   the estimated value of the requirement; or

 

   (b)   the circumstances pertaining to the requirement.

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

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

 

31.   Open domestic bidding

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

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

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

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

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

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

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

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

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

 

32.   Open international bidding

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

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

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

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

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

 

33.   Restricted domestic bidding

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

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

 

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

 

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

 

   (c)   the estimated value of the procurement does not exceed the threshold stated in the guidelines.

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

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

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

 

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

 

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

 

   (c)   any other public procuring and disposing entity's list of pre-qualified providers.

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

 

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

 

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

 

   (c)   a bidder shall not be included unless such bidder is expected to satisfy fully the eligibility requirements; and

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