PUBLIC PROCUREMENT AND ASSET DISPOSAL: SUBSIDIARY LEGISLATION
INDEX TO SUBSIDIARY LEGISLATION
(24th February, 2006)
ARRANGEMENT OF REGULATIONS
Preliminary (regs 1-4)
3. Application of Regulations
4. International obligations
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.,
Public Procurement Rules and Process (regs 20-39)
20. Preference and reservation
21. Records of procurement
23. Emergency procurement
24. Splitting of procuring requirements
25. Aggregation of requirements
26. Framework contracts
27. Initiation of procurement requirements and confirmation of funding
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
Evaluation Processes (regs 40-53)
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
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
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
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
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
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
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
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
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
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
136. Transfer to another procuring and disposing entity
137. Destruction of assets
S.I. 12, 2006,
S.I. 28, 2013.
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.
Procuring Entities (regs 5-19)
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.
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.
(1) Each Ministerial Committee shall be composed of -
(a) a Chairperson;
(b) a Vice-Chairperson;
(c) other members, not exceeding five, 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 seven 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.
(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.
(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.
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.
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) coordinate 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.
(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 coordinate submissions to the Ministerial Committee concerning its disposal and procurement needs as well as the needs of any user department.
(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.
Accounting officers, procurement units and Ministerial Committees shall act independently in relation to their respective functions and powers.
(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, inmaking 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.
(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.
(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.
Public Procurement Rules and Process (regs 20-39)
(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.
(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.
(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.
(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, coordinated 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.
(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 certificaion 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.
(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.
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