ISLAMIC REPUBLIC OF AFGHANISTAN

Ministry of Finance
(MoF)

THE RULES of PROCEDURE

for
PUBLIC PROCUREMENT

18th November, 2009

Procurement Policy Unit (PPU)

Page 1 of 106

CONTENTS
CHAPTER I GENERAL RULES .................................................................................................................... 8

Rule 1:
Rule 2:
Rule 3:
Rule 4:
Rule 5:
Rule 6:
Rule 7:

Scope and Purpose.............................................................................................................. 8

Effectiveness ......................................................................................................................... 8
Terminology .......................................................................................................................... 8
Promotion of participation by small domestic enterprises and individuals . 10
End user and Community Participation ..................................................................... 11
Environmental Protection in Public Procurement ................................................. 11
Promotion of Information and Communications Technology in Public
Procurement........................................................................................................................ 11

CHAPTER II - PROCUREMENT PLANNING ............................................................................................ 11

SECTION A ANNUAL PROCUREMENT PLANNING .............................................................................................. 11
Rule 8:
Requirement for Annual Procurement Planning .................................................... 11
Rule 9:
Contents of Annual Procurement Plan ...................................................................... 12
Rule 10:
Procurement of Common-Use Items .......................................................................... 12
Rule 11:
Aggregation of Requirements ....................................................................................... 12
Rule 12:
Division into Lots ............................................................................................................... 13
SECTION B INITIATION OF PROCUREMENT PROCESS ...................................................................................... 13
Rule 13:
Procurement Requisition and Authorisation ........................................................... 13
Rule 14:
Budgeting and Allotment of Funds ............................................................................ 14
Rule 15:
Description of Goods ........................................................................................................ 15
Rule 16:
Use of Brand Names ......................................................................................................... 15
Rule 17:
Description of Works........................................................................................................ 15
Rule 18:
Description of Services .................................................................................................... 16
SECTION C PLANNING AN INDIVIDUAL PROCUREMENT REQUIREMENT .............................................................. 16
Rule 19:
Individual Procurement Plans ...................................................................................... 16
Rule 20:
Selection of Appropriate Type of Contract ............................................................... 17
Rule 21:
Choice of Procurement Method .................................................................................... 17
Rule 22:
Potential Sources .............................................................................................................. 18
Rule 23:
Emergency Procurement ................................................................................................ 18
Rule 24:
Use of Open Tendering method.................................................................................... 19
Rule 25:
Use of Restricted Tendering method.......................................................................... 19
Rule 26:
Tendering Variants........................................................................................................... 19
Rule 27:
Use of Request for Proposals Proceedings............................................................... 19
Rule 28:
Use of Request for Quotations Proceedings ............................................................ 20
Rule 29:
Use of Single Source Procurement Proceedings .................................................... 20
Rule 30:
Two stage-tendering ........................................................................................................ 20
Rule 31:
Special Procedures for Design Contests ................................................................... 21

Rule 32:
Rule 33:
Rule 34:

Special Procedures for Procurement of Infrastructure on the basis of

private financing and for award of concessions .................................................... 21
Cancellation of Procurement Proceedings ............................................................... 21
Unsuccessful Proceedings .............................................................................................. 22

CHAPTER III - ELIGIBILITY AND QUALIFICATIONS OF BIDDERS .............................................. 23

SECTION A GENERAL PROVISIONS ................................................................................................................. 23
Eligibility of Bidders ......................................................................................................... 23
Qualifications of Bidders ................................................................................................. 23
Qualification Criteria ........................................................................................................ 23

Rule 35:
Rule 36:
Rule 37:
Rule 38:

Qualification Requirements for Subcontractors and Joint Venture Partners

Rule 39:

Database of Bidders ......................................................................................................... 24

................................................................................................................................................. 24

SECTION B PROCEDURE FOR VERIFICATION OF QUALIFICATIONS .................................................................... 24

Verification of Bidders Qualifications ....................................................................... 24
Use of Post-Qualification ................................................................................................ 25

Rule 40:
Rule 41:

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Rule 42:
Rule 43:
Rule 44:
Rule 45:
Rule 46:

Use of Pre-Qualification .................................................................................................. 25

Pre-qualification Announcement ................................................................................. 25
Pre-qualification Documents......................................................................................... 26
Evaluation of Applications.............................................................................................. 26
Pre-qualification for a Group of Contracts ............................................................... 27

CHAPTER IV - PROCEDURES FOR TENDERING ................................................................................... 27

Rule 47:

Use of Tendering Procedures ........................................................................................ 27

SECTION A INVITATION OF BIDS .................................................................................................................. 27
Rule 48:
Inviting Bids ........................................................................................................................ 27
Rule 49:
Contents of Announcement of Tendering Proceedings ....................................... 27
Rule 50:
Publication of Announcement....................................................................................... 28
Rule 51:
Shortlists .............................................................................................................................. 28
Rule 52:
Contents of Bidding Documents .................................................................................. 29
Rule 53:
Minimum Bidding Periods .............................................................................................. 30
Rule 54:
Issue and Sale of Bidding Documents ....................................................................... 30
Rule 55:
Bid Securities ...................................................................................................................... 32
Rule 56:
Clarification and Amendment of Bidding Documents .......................................... 33
Rule 57:
Extension of Bidding Period .......................................................................................... 33
Rule 58:
Pre-bid Conferences and Site Visits............................................................................ 33
Rule 59:
Submission of bids ............................................................................................................ 34
Rule 60:
Withdrawal, Substitution or Modification of Bids ................................................. 34
SECTION B RECEIPT AND OPENING OF BIDS.................................................................................................. 34
Rule 61:
Receipt of Bids.................................................................................................................... 34
Rule 62:
Bid Closing ........................................................................................................................... 34
Rule 63:
Public Opening of Bids ..................................................................................................... 35
SECTION C EVALUATION OF BIDS ................................................................................................................. 36
Rule 64:
Confidentiality and integrity of bid evaluation....................................................... 36
Rule 65:
Evaluation of Bids Committees .................................................................................... 36
Rule 66:
Evaluation Methodology and Criteria......................................................................... 36
Rule 67:
Correction of Non-Conformities, Errors and Omissions ...................................... 37
Rule 68:
Clarification of Bids .......................................................................................................... 37
Rule 69:
Preliminary Examination ................................................................................................ 37
Rule 70:
Assessing Responsiveness of Bids .............................................................................. 38
Rule 71:
Technical Evaluation ........................................................................................................ 38
Rule 72:
Adjustment of bid prices for minor deviations from technical aspects ......... 39
Rule 73:
Alternative Bids .................................................................................................................. 39
Rule 74:
Financial Evaluation and Comparison ........................................................................ 40
Rule 75:
Application of Discounts ................................................................................................. 41
Rule 76:
Preference ............................................................................................................................ 41
Rule 77:
Detailed evaluation of bids for civil works ............................................................... 41
Rule 78:
Post-qualification .............................................................................................................. 42
Rule 79:
Bid Evaluation Reports and Recommendations ..................................................... 42
CHAPTER V - PROCEDURES FOR REQUEST FOR PROPOSALS........................................................ 43

Rule 80:

Use of Request for Proposals Procedures ................................................................ 43

SECTION A INVITATION OF EXPRESSIONS OF INTEREST ................................................................................. 43
Rule 81:
Notice inviting Expressions of Interest ..................................................................... 43
Rule 82:
Evaluation of Expressions of Interest and Development of Shortlists .......... 44
SECTION B INVITATION OF PROPOSALS ........................................................................................................ 44
Rule 83:
Contents of Request for Proposals ............................................................................. 44
Rule 84:
Choice of Selection Procedure ...................................................................................... 44
Rule 85:
Submission of Proposals for Consultancy Services ............................................... 45
Rule 86:
Evaluation Criteria for Consultancy Services .......................................................... 45
Rule 87:
Issue of Request for Proposals .................................................................................... 46
Rule 88:
Clarification and Amendment of Request for Proposals ..................................... 46
Rule 89:
Extension of Proposal Submission Period ................................................................ 46

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SECTION C RECEIPT AND OPENING OF PROPOSALS........................................................................................ 46

Receipt of Proposals ......................................................................................................... 46
Deadline for Submission of Proposals ....................................................................... 47
Opening of Technical Proposals ................................................................................... 47
Record of Opening ............................................................................................................ 47
SECTION D TECHNICAL EVALUATION OF PROPOSALS ..................................................................................... 47
Rule 94:
Evaluation Committees ................................................................................................... 47
Rule 95:
Preliminary Examination ................................................................................................ 48
Rule 96:
Evaluation and selection ................................................................................................. 48
Rule 97:
Scoring of Proposals for Technical Evaluation........................................................ 49
Rule 98:
Technical evaluation report and retention of evaluation records ................... 49
Rule 99:
Notification of Results of Technical Evaluation...................................................... 49
SECTION E FINANCIAL EVALUATION OF PROPOSALS ...................................................................................... 50
Rule 100: Financial Opening .............................................................................................................. 50
Rule 101: Financial Evaluation for Quality and Cost Based Selection Methods.............. 50
Rule 102: Financial Evaluation for Quality Based Selection .................................................. 51
Rule 103: Financial evaluation report ............................................................................................ 51
Rule 104: Scope of Negotiations ...................................................................................................... 52
Rule 105: Procedure for Negotiations............................................................................................ 52
Rule 106: Procedure for award......................................................................................................... 53
SECTION F INDIVIDUAL CONSULTANTS ......................................................................................................... 53
Rule 107: Selection of Individual Consultants............................................................................ 53
Rule 108: Procedure for Selection of Individual Consultants ............................................... 53

Rule 90:
Rule 91:
Rule 92:
Rule 93:

CHAPTER VI PROCEDURES FOR REQUEST FOR QUOTATIONS .................................................. 54

Rule 109:
Rule 110:
Rule 111:
Rule 112:
Rule 113:

Use of Request for Quotations Procedures .............................................................. 54

Contents of Request for Quotations Document ..................................................... 54
Invitation of Quotations and Development of Shortlist ...................................... 54
Submission and Receipt of Quotations...................................................................... 55
Evaluation of Quotations ................................................................................................ 55

CHAPTER VII PROCEDURES FOR SINGLE-SOURCE PROCUREMENT ....................................... 55

Rule 114:

Use of Single Source Procurement Procedures ...................................................... 55

SECTION A SINGLE-SOURCE PROCUREMENT FOR LOW VALUE REQUIREMENTS ............................................... 56
Rule 115: Procedure for Low Value Procurement ..................................................................... 56
SECTION B SINGLE-SOURCE FROM A SOLE SUITABLE POTENTIAL CONTRACTOR ............................................. 56
Rule 116: Procedure for Procurement from a Sole Potential Contractor .......................... 56
SECTION C SINGLE-SOURCE FOR EMERGENCY NEEDS .................................................................................... 56
Rule 117: Procedures for Emergency Procurement .................................................................. 56
Rule 118: Approval Arrangements for Emergency Procurement ......................................... 57
SECTION D QUOTATION EVALUATION AND NEGOTIATION PROCEDURES ......................................................... 57
Rule 119: Quotation Evaluation for Single Source and Emergency Cases........................ 57
Rule 120: Procedure for Negotiations............................................................................................ 58
CHAPTER VIII CONTRACT AWARD ...................................................................................................... 58
SECTION A CONTRACT AWARD ..................................................................................................................... 58
Contract Award Decisions .............................................................................................. 58
Commitment of Funds ..................................................................................................... 58

Rule 121:
Rule 122:
Rule 123:
Rule 124:
Rule 125:
Rule 126:
Rule 127:
Rule 128:
Rule 129:

Notice of Proposed Award under Tendering and Request for Proposals

Methods ................................................................................................................................ 58
Contract Award under Tendering and Request for Proposals Methods ........ 59
Contract Preparation and Signature under Tendering and Request for
Proposals Methods ............................................................................................................ 60
Contract Award in Request for Quotations .............................................................. 60
Contract Award in Single Source Procurement ...................................................... 60
Performance Securities ................................................................................................... 60
Rejection of Bids and Debriefing Unsuccessful Bidders ...................................... 61

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Rule 130:
Rule 131:

Public Notice of Contract Awards ................................................................................ 62

Registration of Contracts ............................................................................................... 62

SECTION B TYPES OF CONTRACT .................................................................................................................. 62

Types of Contract and Pricing Approaches .............................................................. 62
Lump Sum Contracts ........................................................................................................ 62
Unit Price Contracts.......................................................................................................... 63
Framework Contracts ...................................................................................................... 63
Percentage Based Contracts ......................................................................................... 64
Cost Reimbursable and Target Price Contracts ...................................................... 64
Contract for design, supply and erection.................................................................. 64
Turnkey contracts for industrial plant ....................................................................... 65
Design and build contracts ............................................................................................ 65
SECTION C CONTRACT DOCUMENTS ............................................................................................................. 65
Rule 141: Contents of Contract ........................................................................................................ 65
Rule 142: Price Adjustment ............................................................................................................... 66
Rule 143: Payment Terms .................................................................................................................. 66
Rule 144: Advance Payments ............................................................................................................ 67
Rule 145: Progress Payments ........................................................................................................... 67
Rule 146: Retained Payments ........................................................................................................... 67
Rule 147: Payment Documents ........................................................................................................ 68
Rule 148: Payment Securities ........................................................................................................... 68

Rule 132:
Rule 133:
Rule 134:
Rule 135:
Rule 136:
Rule 137:
Rule 138:
Rule 139:
Rule 140:

CHAPTER IX CONTRACT ADMINISTRATION .................................................................................... 69

SECTION A CONTRACT ADMINISTRATION ...................................................................................................... 69
Contract Administration Responsibilities ................................................................. 69
Administration of Sub-Contracts ................................................................................. 70
Technical Inspection of Goods and Works ............................................................... 70
Inspection and Acceptance of Goods, Works and Services ............................... 71
Inspection Committee ..................................................................................................... 71
SECTION B CONTRACT MODIFICATIONS ........................................................................................................ 71
Rule 154: Contract Modifications .................................................................................................... 71
Rule 155: Contract Variations ........................................................................................................... 72
Rule 156: Contract Termination ....................................................................................................... 72

Rule 149:
Rule 150:
Rule 151:
Rule 152:
Rule 153:

CHAPTER X - MEASURES TO PROMOTE TRANSPARENCY AND ACCOUNTABILITY ................ 72

SECTION A TRANSPARENCY .......................................................................................................................... 72
Procurement Records ...................................................................................................... 72
Summary Record of Procurement Proceedings...................................................... 73
Confidentiality and Disclosure of Records ............................................................... 73
Management of Securities and Similar Documents .............................................. 74
Communications ................................................................................................................ 74
SECTION B ACCOUNTABILITY ........................................................................................................................ 74
Rule 162: Declaration of Conflicts of Interest ............................................................................ 74
Rule 163: Fraud and Corruption ....................................................................................................... 75
Rule 164: Post-employment Restrictions on Public Officials ................................................ 75
Rule 165: Avoidance of conflicts of interest in consultative services ................................ 76
SECTION C DEBARMENT OF BIDDERS AND CONTRACTORS.............................................................................. 76
Rule 166: Grounds for Debarment of Bidders and Contractors ............................................ 76
Rule 167: Submission of a Petition to Debar ............................................................................... 76
Rule 168: Investigation of Petitions to Debar ............................................................................ 76
Rule 169: Decisions to Debar ............................................................................................................ 77
SECTION D ADMINISTRATIVE REVIEW........................................................................................................... 78
Rule 170: Submission of Application for Review ....................................................................... 78
Rule 171: Review by Head of the Entity........................................................................................ 78
Rule 172: Review by Administrative Review Committee ........................................................ 79
Rule 173: Composition of Administrative Review Committee and Review Boards ....... 79

Rule 157:
Rule 158:
Rule 159:
Rule 160:
Rule 161:

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CHAPTER XI - INSTITUTIONAL ARRANGEMENTS FOR PUBLIC PROCUREMENT .................... 80

SECTION A PROCURING ENTITIES .................................................................................................................. 80
Establishment of Procurement Offices ...................................................................... 80
Functions of Procurement Offices ............................................................................... 80
Functions of Procurement Committees ..................................................................... 81
Composition of Procurement Committees ............................................................... 82
Procurement Committee Meetings ............................................................................. 82
Approval by the Award Authorities ............................................................................. 83
SECTION B ARRANGEMENTS AT OTHER LEVELS ............................................................................................. 83
Rule 180: Approval by the Special Procurement Commission .............................................. 83
Rule 181: Special Procurement Commission Meetings............................................................ 84
Rule 182: Special Agency for procurement of Common Use Items .................................... 84
Rule 183: Contract Management Office (CMO) .......................................................................... 85
SECTION C DELEGATION OF PROCUREMENT AUTHORITY................................................................................ 85
Rule 184: Setting and Updating Thresholds ................................................................................ 85
Rule 185: Special permission for application of thresholds for specific procurement . 86

Rule 174:
Rule 175:
Rule 176:
Rule 177:
Rule 178:
Rule 179:

ANNEX-1: MEASURES AND PROGRAMS TO PROMOTE THE PARTICIPATION OF SMALL

ENTERPRISES, RULE 4(1) ........................................................................................................................... 87

Article 1.

Measures and Programmes ........................................................................................... 87

ANNEX-2: PROCEDURES FOR END USER AND COMMUNITY PARTICIPATION, RULE 5(1) . 88

Article 1:
Article 2:
Article 3:
Article 4:
Article 5:
Article 6:

Procedures for End User and Community Participation ...................................... 88

Application of Procedures .............................................................................................. 88
Agreement on End User or Community Participation .......................................... 88
End User or Community Representation................................................................... 88
Role of the Entity ............................................................................................................... 89
Procurement and Payments .......................................................................................... 89

ANNEX-3: PRINCIPLES OF ENVIRONMENTAL PROTECTION IN PUBLIC PROCUREMENT,

RULE 6(1).......................................................................................................................................................... 90

Article 1:
Article 2:

Objectives ............................................................................................................................ 90
Measures and Programmes ........................................................................................... 90

ANNEX-4: PRINCIPLES FOR USE OF INFORMATION AND COMMUNICATIONS

TECHNOLOGY IN PUBLIC PROCUREMENT RULE 7(1) ...................................................................... 92

Article 1:
Article 2:

Principles .............................................................................................................................. 92
Measures and Programme ............................................................................................. 92

ANNEX-5: SPECIAL PROCEDURES FOR DESIGN CONTESTS RULE 39(2)................................... 93

SECTION-I : GENERAL PROVISIONS........................................................................................................... 93
Scope and Purpose............................................................................................................ 93
Valuation of design contests ......................................................................................... 93
SECTION-II : DESIGN CONTEST JURY........................................................................................................ 93
Article 3:
Establishment of jury ....................................................................................................... 93
Article 4:
Composition of jury .......................................................................................................... 93
Article 5:
Jury procedures ................................................................................................................. 93
SECTION-III : PARTICIPATION IN DESIGN CONTESTS ............................................................... 94
Article 6:
Contest notice..................................................................................................................... 94
Article 7:
Contents of contest notice ............................................................................................. 94
Article 8:
Extent of participation..................................................................................................... 94
Article 9:
Subvention of participation ........................................................................................... 95
Article 10: Non-discrimination ........................................................................................................... 95
SECTION-IV : CONTEST DOCUMENTS........................................................................................................ 95
Article 11: Provision of contest documents ................................................................................... 95
Article 12: Contents of contest documents ................................................................................... 95

Article 1:
Article 2:

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Article 13:

Registration and admission of participants ............................................................. 96

SECTION-V : SUBMISSION AND EVALUATION OF DESIGNS AND PLANS.............................................. 96
Article 14: Submission of designs and plans ................................................................................. 96
Article 15: One or two stage contests ............................................................................................. 96
Article 16: Evaluation and comparison of designs ...................................................................... 96
Article 17: Selection of the winning design ................................................................................... 96
Article 18: Notice of results ................................................................................................................. 97
SECTION-VI : ALLOCATION OF PRIZES, AWARDS AND COMPENSATION............................................. 97
Article 19: Amount of prizes ............................................................................................................... 97
Article 20: Distribution of prizes ....................................................................................................... 97
Article 21: Use of designs..................................................................................................................... 97
Article 22: Copyright and ownership issues .................................................................................. 97
SECTION-VII : MISCELLANEOUS PROVISIONS ......................................................................................... 97
Article 23: Exhibition of designs ........................................................................................................ 97
Article 24: Standards of conduct ....................................................................................................... 98
Article 25: Cancellation of contest .................................................................................................... 98
Article 26: Record of the contest....................................................................................................... 98
Article 27: Review ................................................................................................................................... 99
ANNEX-6: SPECIAL PROCEDURES FOR PROCUREMENT OF INFRASTRUCTURE ON THE
BASIS OF PRIVATE FINANCING AND FOR THE AWARD OF CONCESSIONS RULE 40(1) ... 100
SECTION-A : RULES GOVERNING THE PROCUREMENT PROCEEDINGS ............................................................... 100
Applicable Law & Rules ................................................................................................ 100
SECTION-B : PRE-QUALIFICATION OF BIDDERS .............................................................................................. 100
Article 2:
Purpose and procedure of pre-qualification .......................................................... 100
Article 3:
Pre-qualification criteria ............................................................................................... 100
Article 4:
Participation of consortia ............................................................................................. 101
Article 5:
Shortlist .............................................................................................................................. 101
SECTION-C : PROCEDURE FOR REQUESTING AND EVALUATING PROPOSALS ...................................................... 101
Article 6:
Single-stage and two-stage procedures for requesting proposals ............... 101
Article 7:
Content of the request for proposals ....................................................................... 102
Article 8:
Bid securities..................................................................................................................... 102
Article 9:
Evaluation criteria ........................................................................................................... 103
Article 10: Comparison and evaluation of proposals ............................................................... 103
Article 11: Final negotiations............................................................................................................ 103
SECTION-D : NEGOTIATION OF CONTRACTS WITHOUT COMPETITIVE PROCEDURES...................................... 104
Article 12: Circumstances authorizing award without competitive procedures ............ 104
Article 13: Procedures for negotiation of a contract without competitive procedures104
SECTION-E : UNSOLICITED PROPOSALS .......................................................................................................... 104
Article 14: Admissibility of unsolicited proposals ..................................................................... 104
Article 15: Procedures for determining the admissibility of unsolicited proposals ...... 105

Article 1:

Article 16:
Article 17:

Unsolicited proposals that do not involve intellectual property, trade

secrets or other exclusive rights ............................................................................... 105
Unsolicited proposals involving intellectual property, trade secrets or other
exclusive rights ................................................................................................................ 105

SECTION-F : MISCELLANEOUS PROVISIONS .................................................................................................... 106

Confidentiality .................................................................................................................. 106
Notice of contract award .............................................................................................. 106

Article 18:
Article 19:

Page 7 of 106

Rules of Procedure for Public Procurement

CHAPTER I GENERAL RULES
Rule 1:

Scope and Purpose

(1)

These Rules of Procedure are issued in accordance with article 95 of the Afghanistan
Law on Public Procurement enacted in July 2008 as amended in January, 2009
(hereinafter the Law), for the purpose of establishing detailed rules and procedures
to fulfil the objectives and to implement the provisions of the Law.

(2)

These Rules apply to all procurement covered by the Law, in accordance with article
4 of the Law. Alternative or modified procurement rules may only be applied in the
case of-

(3)

(a)

Procurement related to national defence or national security, in accordance

with article 4(1) of the Law.

(b)

Procurement subject to the rules of a donor or funding agency in accordance

with article 4(2) of the Law; or

(c)

Procurement conducted by Afghan government entities located abroad,

unless agreed otherwise in accordance with Article 4(3) of the Law

Compliance with these Rules is obligatory for procuring entities and other
participants in public procurement.

Rule 2:

Effectiveness

These Rules shall be approved in Ministry of Finance and shall become effective on approval.
Rule 3:
(1)

Terminology

Administrative Review Committee refers to the panel of experts appointed by the

PPU in accordance with article 72(1) of the Law for the purposes of conducting
administrative review of applications and related appeals.

(2)

Award Authority means the person with authority to award a contract or approve a
contract modification, concerning the procurement of goods, services or works,
pursuant to provisions of the Law and the provisions of the Public Finance and
Expenditure Management Law.

(3)

Bid means a tender, proposal or price quotation given by a bidder in response to

an invitation or request for the provision of goods, works or services.

(4)

Bidder means a legal or natural person, according to the provisions of the bidding
documents who, or whose legal representative; submits an offer and participates in
the procurement proceedings in accordance with provisions of the Law.

(5)

Bidding Documents means document [issued by the Entity] describing quantity,

quality, characteristics of goods, works and [non-consulting] services to be procured,
conditions and procedure for submitting a bid.

(6)

Circulars means circulars or guidelines issued by the PPU under the provisions of
Article 95(2) of the Law.

(7)

Consultants services refers to activities of a professional, intellectual and advisory

nature. Provision of materials and goods or works shall be an exception to this Rule,
except when the works are of an informational nature. They include design,

Page 8 of 106

supervision, training, auditing, software development, expert proposals and advice,

and similar technical or professional services.
(8)

Contractor is a successful bidder who contracts with the procuring entity to provide
goods, works or services.

(9)

Currency designates the Afghani or the legal tender of foreign countries.

(10)

Goods means objects of every kind including raw materials, products and
equipment whether in solid, liquid or gaseous form, as well as services incidental to
the provision of the goods provided the value of such incidental services does not
exceed that of the goods.

(11)

Law means the 2008 Afghanistan Law on Public Procurement, as amended in

2009.

(12)

Non-consultancy services are any object of procurement other than goods, works
and consultants services.

(13)

Tendering: means any formal and competitive procurement procedures through

which bids are requested, received and evaluated for the procurement of goods,
works and services, and as a consequence of which an award is made to the
successful bidder.

(14)

Restricted Tender means the tendering method, provided by article 23 of the Law,
in which a limited number of bidders, which shall not be less than three (3), are
invited to bid.

(15)

Single-source procurement is the procurement method, provided by Article 24 of

the Law, by which the Entity awards the procurement contract directly, without
holding a competitive proceeding.

(16)

Open Tender is the procurement method, provided by article 22 of the Law, in

which any bidder may submit a bid concerning the procurement of his interest, in
compliance with the specifications set forth in the bidding documents, to the relevant
entity.

(17)

Person is a natural or legal person including companies, firms, and the like.

(18)

Procurement means acquisition of goods, works or services, by entity or through a

contractor by use of public funds.

(19)

Procurement Committee is a committee of directors and officials appointed by the

Entity to carry out procurement proceedings as provided for by the Law.

(20)

Procurement contract means the written agreement made by an entity with a

contractor with respect to the procurement.

(21)

Entity (Edaara) means any Ministry, independent head departments, state owned

enterprises other budgetary unit and also municipality, government companies and
mixed companies in which the share of the state exceeds twenty-five percent
(25%).

(22)

Procurement Office is the office responsible to carry out procurement activities

according to the functions provided for by Article 74 of the Law..

(23)

Procurement Policy Unit (PPU) is the central unit established within the Ministry of
Finance pursuant to Article 80 of the Law, for policy and professional development
and as a performance monitoring organ in the field of procurement.

Page 9 of 106

(24)

Public funds are the moneys or other financial assets defined in article 8 of the
Public Finance and Expenditure Management Law, and includes any monetary
resources appropriated to procuring entities through budgetary processes, as well as
extra budgetary funds including aid grants and credits put at the disposal of
procuring entities by foreign donors, and revenues of procuring entities.

(25)

Request for quotations proceedings is the simplified procurement method, provided

by article 21 of the Law, to carry out low-value procurement of standard goods or
routine works or non-consultancy services.

(26)

Request for quotations means the document used to carry out low-value
procurement of standard goods or works or services, in accordance with the
provisions of the Law.

(27)

Request for proposals proceedings is the procurement procedure, provided by

Article 37 of the Law, to be utilised for procurement of consulting and other
intellectual services.

(28)

Request for proposals for Consultancy Services is the document package utilized
for procurement of, consultants services in which the procedures and conditions for
submission of proposals are described.

(29)

Rules means these Rules of Procedure for Public Procurement.

(30)

Securities means the funds in cash or in kind, immovable property, bank

guarantee or any other such instrument that the bidder provides to secure his
obligations in the tender proceedings and that the contractor provides in fulfilling its
obligations under the procurement contract.

(31)

Solicitation documents means bidding documents, request for proposals

documents, request for quotations documents and any other document on the basis
of which bidders prepare and submit a bid or a proposal for the supply of goods,
works or services.

(32)

Special Procurement Commission is the Committee established under Article 77 of

the Law to approve high-value procurement contract awards exceeding Award
Authoritys threshold limits in accordance with the provisions of Article 92 of the
Law.

(33)

Two-stage tendering is the variant of tendering proceedings in which, in

accordance with the provisions of Articles 39 of the Law, the procuring entity holds
consultations with bidders in the first stage on the basis of preliminary bidding
documents with a view to considering various possible technical and contractual
solutions to its procurement need; thereafter, in the second stage, a tendering
proceeding is held on the basis of revised bidding documents.

(34)

Works includes all work associated with the construction, reconstruction,

demolition, repair or renovation of a building, structure or site preparation,
excavation, erection, installation of equipment or materials, decoration and finishing,
as well as services incidental to construction such as drilling, mapping, satellite
photography, seismic investigations and similar services provided pursuant to the
procurement contract, provided that the value of those services does not exceed
that of the construction itself.

Rule 4:
(1)

Promotion of participation by small domestic enterprises and

individuals

The PPU, in consultation with other competent authorities, shall issue circulars on
measures and program for the promotion and facilitation of participation by small

Page 10 of 106

domestic enterprises and individuals in public procurement. Such measures and

program shall be in accordance with Annex 1.
(2)

Procuring entities shall implement measures and programs for the promotion and
facilitation of participation by small domestic enterprises and individuals in
accordance with circulars issued by the PPU.

Rule 5:

End user and Community Participation

(1)

The PPU, in consultation with other competent authorities, may issue circulars on
procedures for end user and community participation in the delivery of goods, works
or services. Such circulars shall be in accordance with Annex 2.

(2)

Procuring entities may implement end user and community participation in

accordance with procedures in circulars issued by the PPU.

Rule 6:

Environmental Protection in Public Procurement

(1)

The PPU, in consultation with other competent authorities, shall issue circulars on
environmental protection in public procurement. Such circulars shall be in accordance
with Annex-3.

(2)

Procuring entities shall implement measures to protect the environment in accordance

with circulars issued by the PPU.

Rule 7:

Promotion of Information and Communications Technology in Public

Procurement

(1)

Pursuant to article 10 of the Law, the PPU, in consultation with other competent
authorities, shall issue circulars and guidelines on measures and programmes to
introduce the use of information and communications technology in public
procurement. Such circulars and guidelines shall be in accordance with the principles
set forth in Annex 4.

(2)

Procuring entities shall implement measures and programs to introduce the use of
information and communications technology in accordance with circulars and
guidelines issued by the PPU.

(3)

The PPU shall identify any required additions or amendments to the legal and
regulatory framework for public procurement to accommodate the application of
information and communications technology and shall promote their introduction.

CHAPTER II - PROCUREMENT PLANNING

SECTION A Annual Procurement Planning
Rule 8:

Requirement for Annual Procurement Planning

(1)

Procuring entities shall prepare a procurement plan for each fiscal year, containing
the information required by rule 9.

(2)

Annual procurement planning shall be integrated with applicable budget processes

and based on indicative or approved budgets, as appropriate.

(3)

Procuring entities shall submit their annual procurement plans to the PPU of the
Ministry of Finance by the end of the first quarter of each fiscal year.

(4)

Procuring entities shall revise and update their procurement plans, as appropriate,
during the course of each fiscal year.

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Rule 9:
(1)

The annual procurement plan for each procuring entity shall include:
(a)

A detailed breakdown of the goods, works and services required;

(b)

a schedule of the delivery, implementation or completion dates for all goods,

works and services required;

(c)

an indication of which items can be aggregated for procurement as a single

package or for procurement through any applicable arrangements for
common-use items;

(d)

an estimate of the value of each package of goods, works and services

required and details of the budget available and sources of funding;

(e)

an indication of the rules applicable to the procurement, where any

procurement is not subject to these Rules;

(f)

an indication of the anticipated procurement method for each procurement

requirement, including any need for pre-qualification, and the anticipated
time for the complete procurement cycle, taking into account the applicable
approval requirements;

(i)

an indication of whether the goods, works or services will be procured by the

Procurement Office, a specialised Procurement Office, any special agency
designated to procure common-use items or any other body;

(j)

an indication of the resources available for managing the procurement

workload; and

(k)

details of any committed or planned procurement expenditure under existing

multiyear contracts.

Rule 10:
(1)

Procurement of Common-Use Items

Procuring entities shall procure common-use items in accordance with any

instructions issued by the Government under article 79 of the Law.

Rule 11:
(1)

Contents of Annual Procurement Plan

Aggregation of Requirements

Procuring entities shall aggregate procurement requirements, where appropriate, in

order to achieve economies of scale. In deciding where aggregation is appropriate,
the Procurement Office shall consider all relevant factors, including:
(a)

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

(b)

when items will be ready for bidding and when delivery, implementation or
completion is required;

(c)

the optimum size and type of contract to attract the greatest and most
responsive competition, taking into account the market structure for the
items required;

(d)

the need to apply any applicable measures to promote the participation of

small domestic enterprises or individuals, or to promote end-user or
community participation;

(e)

which items will be subject to the same bidding requirements and conditions
of contract; and

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(f)
Rule 12:

the potential to realise savings in time or transaction costs or to facilitate

contract administration by the procuring entity.
Division into Lots

(1)

Notwithstanding the prohibition on dis-aggregation of procurement in Article 16(1) of

the Law, procuring entities may divide a procurement requirement, which could be
procured as a single contract, into a package, consisting of several lots which are to
be tendered together, where it is anticipated that the award of several separate
contracts may result in the best overall value for the Entity.

(2)

The division of a requirement into a package of separate lots is permitted where it is

likely to increase the number of responsive bids by enabling the participation of:

(3)

(4)

(a)

bidders who are able to bid for some, but not all, types of item; or

(b)

small enterprises who would not be qualified to bid for the complete package
as a single contract.

A requirement shall not be divided into lots

(a)

for the sole purpose of avoiding thresholds;

(b)

where the award of several separate contracts would create problems of

compatibility or interchange ability between items procured as separate lots,
or would unduly strain contract administration resources;

(c)

where the award of several separate contracts would invalidate or otherwise

restrict any contractors warranty or liability; or

(d)

where the award of several separate contracts would increase the costs of
servicing, maintenance or similar requirements.

Where a requirement which could be procured as a single contract is divided into

lots, the Entity shall:
(a)

permit bidders to bid for a single lot, any combination of lots or all lots; and

(b)

demonstrate, prior to contract award, that the recommended contract award

or combination of contract awards offers the best overall value for the Entity.

SECTION B Initiation of Procurement Process

Rule 13:
(1)

Procurement Requisition and Authorisation

Every procurement requirement shall be documented using a procurement

requisition, which shall include:
(a)

a description of the goods, works or services required, in accordance with

rules 15, 17 or 18, as appropriate;

(b)

the estimated value of the goods, works or services; and

(c)

details of the funds budgeted for the requirement, including any funds yet to
be allotted or from future budgets for multi-year contracts.

(2)

In preparing the description of goods, works or services required, the end user shall
ensure that it seeks technical advice, where required.

(3)

In estimating the value of the goods, works or services, the end user shall ensure
that the estimate is realistic and based on up-to-date information on economic and
market conditions.

Page 13 of 106

(4)

The procurement requisition shall be approved by the Procurement Award Authority

specified in Article 91 of the Law, acting as Procurement Initiation Authority, prior to
the initiation of procurement proceedings.

(5)

Approved procurement requisitions shall be submitted to the Procurement Office of

the Entity to initiate procurement proceedings.

Rule 14:
(1)

Budgeting and Allotment of Funds

The Procurement Office shall ensure that adequate funds are budgeted and allotted
in accordance with article 12(1) of the Law, prior to initiating procurement
proceedings, taking into account all costs involved in the procurement. The costs
involved may, in addition to the total contract price, include the following:
(a)

contingencies, including any anticipated contract variations, exchange rate

fluctuations or allowance for price adjustment;

(b)

other costs relating to the successful delivery of a procurement requirement

and for which the Entity will be liable, such as freight, insurance, customs
clearance, inland delivery, import taxes or duties, inspection, installation or
any costs relating to service or maintenance agreements;

(c)

costs relating to facilities, services or resources to be provided by the Entity,

such as office space or communication facilities for consultants or counterpart
staff; and/or

(d)

the cost of any linked contract, which is necessary for the successful
implementation of the procurement, such as a contract for engineering
supervision of a construction contract.

(2)

The Procurement Office shall also ensure that adequate funds are available for
managing the procurement proceedings, including, but not limited to, any funds
required for publication of notices.

(3)

Notwithstanding the provisions of sub-Rule 14(1), a Entity may initiate procurement

proceedings, up to, but not including contract award, prior to allotting the funds
required, where this is necessary in order to meet the objectives of the procurement
and comply with the procurement plan. The fact that funds have not yet been
allotted shall be clearly stated on the procurement requisition, which shall also
indicate the expected source of funds and when they are expected to be allotted.

(4)

Where the Entity initiates procurement proceedings prior to allotting funds, in

accordance with sub-Rule 14(3), it shall obtain the prior written approval of the
Ministry of Finance.

(5)

Where a Entity initiates procurement proceedings for a multi-year contract, which will
commit the Entity to make payments in subsequent fiscal years, the Entity shall:
(a)

obtain the approval of the Ministry of Finance, prior to contract award;

(b)

ensure that funds for the current fiscal year are budgeted and allotted; and

(c)

ensure that funds for future fiscal years are included in budgets for
subsequent fiscal years and reported to the Ministry of Finance, without
prejudice to a reservation by the Entity in the contract of the right to cancel
subsequent years of the contract in the event the necessary funding is not
allocated in the budget.

Page 14 of 106

Rule 15:
(1)

(2)

(3)

Description of Goods

Every procurement requisition for the procurement of goods shall be accompanied by

a complete, precise and unambiguous description of the goods required. This
description shall include, where appropriate(a)

a list of goods and the quantities required, including any incidental services or
works, such as delivery, installation, commissioning, maintenance, repair,
user training or the provision of after-sales services;

(b)

a delivery and completion schedule;

(c)

specifications; and

(d)

drawings.

Specifications shall include, where appropriate(a)

the purpose and objectives of the goods;

(b)

a full description of the requirement;

(c)

a generic specification to an appropriate level of detail;

(d)

a functional description of the goods, including any environmental or safety

features;

(e)

performance parameters, including outputs, timescales and any indicators or

criteria by which satisfactory performance can be judged;

(f)

process and materials descriptions;

(g)

dimensions, symbols, terminology language, packaging, marking and labelling

requirements;

(h)

inspection and testing requirements; and

(i)

any applicable standards.

The description of goods shall be drawn up in an objective manner, so as to

maximize competition.

Rule 16:

Use of Brand Names

(1)

Descriptions of goods shall not include any reference to a particular trademark,

brand name, patent, design, type, specific origin, producer, manufacturer, catalogue
or numbered item, unless there is no other sufficiently precise or intelligible way of
describing the requirement, in which case the words or equivalent shall be included
and the description shall serve only as a benchmark during the evaluation process.

(2)

Notwithstanding the provisions of sub-Rule 16(1), where a particular trademark,

brand name, patent, design, type, specific origin, producer, manufacturer, catalogue
or numbered item is required for reasons of technical compatibility, servicing,
maintenance or preservation of warranty conditions, such description may be used,
subject to written justification.

Rule 17:
(1)

Description of Works

Every procurement requisition for the procurement of works shall be accompanied by

a complete, precise and unambiguous description of the works required. This
description shall include, where appropriate:
(a)

a description of the scope of the works, which may include, but not be limited
to design, construction or installation of equipment;

Page 15 of 106

(b)

the purpose and objectives of the works;

(c)

the duration or completion schedule for the works;

(d)

details of the supervision requirements, working relationships and other

administrative arrangements;

(e)

drawings and/or design requirements;

(f)

specifications and standards;

(g)

bill of quantities or equivalent; and

(h)

inspection and testing requirements.

Rule 18:
(1)

Description of Services

Every procurement requisition for the procurement of services shall be accompanied

by a complete, precise and unambiguous description of the services required. This
description shall consist of terms of reference, which shall include, where
appropriate:
(a)

a background narrative to the required services;

(b)

the objectives of the services and targets to be achieved;

(c)

a list of specific tasks or duties;

(d)

deliverables or outputs for the assignment;

(e)

the role, qualifications or experience required for any key staff;

(f)

management and reporting lines for the supplier, including administrative

arrangements and reporting requirements;

(g)

any facilities, services or resources to be provided by the Entity;

(h)

inspection or quality testing requirements or indicators of successful

performance; and

(i)

the duration or completion schedule.

SECTION C Planning an individual procurement requirement

Rule 19:

Individual Procurement Plans

(1)

Following receipt of the approved procurement requisition, the Procurement Office

shall prepare a procurement plan for each individual procurement requirement.

(2)

Procurement plans shall include(a)

a description of the requirement, including the schedule required for delivery,

implementation or completion of the goods, works or services and any
division into lots;

(b)

the estimated value of the requirement and, where applicable, individual lots;

(c)

the proposed procurement method, in accordance with Rule 21, and a

justification for the use of any method other than open tendering, or request
for proposals for consultancy services;

(d)

an indication of whether any tendering variants will apply, in accordance with

Rule 26;

Page 16 of 106

(e)

an indication of whether pre- or post- qualification will be required, or

whether the procurement requirement will make use of any pre-qualification
for a group of contracts;

(f)

an estimate of the time required for each stage in the procurement cycle,
taking into account publication requirements and the applicable approval
requirements;

(g)

the proposed type of contract in accordance with Rule 20;

(h)

the rules applicable to the procurement, where any procurement is subject to

alternative rules in accordance with Article 4(2) and Article 4(3) of the Law;

(i)

an indication of the resources required and available for management of the

procurement process and contract administration; and

(j)

any other relevant information.

(3)

Notwithstanding the provisions of sub-Rule 19(1), where the estimated value of the
procurement requirement is less than the amount stated in Rule 28, below which use
of the request for quotations method is permitted, no written procurement plan shall
be required.

(4)

The Procurement Plan shall be submitted to the Procurement Committee for

approval, prior to issue of any solicitation documents.

Rule 20:

Selection of Appropriate Type of Contract

(1)

The procuring entity shall use the most appropriate type of contract from among the
types specified in Chapter VIII, Section B of these Rules.

(2)

The Procurement Office shall select the type of contract as part of the procurement
planning process, taking into account:
(a)

the nature, value and complexity of the procurement requirement;

(b)

the need to offer an equitable contract to bidders to ensure effective

competition;

(c)

the need to maximise value for money and minimise risk for the Entity;

(d)

the likelihood of any delays or unforeseen circumstances requiring contract

variations;

(e)

The Entitys ability to define its precise requirements, including the quantities
and delivery or completion dates required;

(f)

the need for effective contract administration and cost control; and

(g)

the resources available for contract administration.

Rule 21:

Choice of Procurement Method

(1)

Procuring entities shall select the most appropriate method of procurement for each
requirement, as part of the procurement planning process. The choice of the
Procurement Method shall be as provided in the Law.

(2)

The choice of procurement method shall take into account(a)

the estimated value of the procurement;

(b)

the potential sources for the procurement, in accordance with Rule 22;

(d)

the nature of the goods, works or services required; and

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(e)

the circumstances surrounding the procurement, such as the existence of an

emergency need.

(3)

The reasons for the selection of any procurement method other than open tendering
or request for proposals shall be clearly stated in the procurement record.

(4)

The Procurement Office shall obtain the prior approval of the Award Authority, for
the use of-

(5)

(a)

restricted tendering, except where the method is used on grounds of the

estimated value, in accordance with Rule 25;

(b)

open or restricted tendering, using a two-stage procedure;

(c)

single source procurement, except where the method is used on grounds of

the estimated value, in accordance with Rule 29.

The approval required by sub-Rule 21(4) shall be obtained when seeking approval of
the procurement plan.

Rule 22:
(1)

Potential Sources

In considering the potential sources for any procurement requirement, the

Procurement Office shall consider all relevant factors, including, but not limited to:
(a)

the competitiveness of the national and international market for the goods,
works or services;

(b)

the likely interest of potential national and international bidders, given the
size and nature of the requirement;

(c)

whether items should be procured from the manufacturer or from a

distributor or agent;

(d)

any restrictions relating to existing copyright, intellectual property rights,

patent or proprietary rights;

(e)

whether there are functionally equivalent goods, works or services which

would meet the needs of the Entity;

(f)

any applicable government regulations that restrict sources;

(g)

the need for compatibility or interchange ability with existing goods, works or
services;

(h)

requirements for servicing and maintenance of items procured and any

restrictions related to conditions of warranty;

(i)

any impact on conditions relating to warranty or a contractors liability, if

alternative contractors are used for additional or continued deliveries or work;
and

(j)

any potential benefits such as the use of experience acquired or savings in

mobilisation costs.

Rule 23:

Emergency Procurement

(1)

Where urgent circumstances or an emergency need affect the choice of procurement

method, the Entity shall not automatically exclude competitive methods of
procurement and shall obtain competition to the maximum extent practical in the
circumstances

(2)

Where the Entity uses restricted tendering on grounds of urgency in accordance with
the provisions of Rule 25(1)(c) or single source procurement on grounds of an

Page 18 of 106

emergency in accordance with the provisions of Rule 29(1)(c), the Entity shall limit
the procurement to the quantity needed to deal with the urgent circumstances.
Rule 24:
(1)

(2)

A procuring entity shall use the open tendering procurement method for all
procurement of goods, works and non-consultancy services, except where:
(a)

the procurement meets the conditions for use of restricted tendering

specified in Rule 25; or

(b)

the estimated value is less than the applicable threshold for request for
quotations specified in Rule 28; or

(c)

the procurement meets the conditions for use of single source procurement
specified in Rule 29.

Procurement under the open tendering method shall be conducted in accordance

with the provisions of Chapter IV of these Rules.

Rule 25:
(1)

(2)

Use of Restricted Tendering method

An Entity may use the restricted tendering procurement method for goods, works or
non-consultancy services where:
(a)

the goods, works or services are only available from a limited number of
bidders;

(b)

when the time and cost of considering a large number of bids is

disproportionate to the value of the procurement;

(c)

the use of open tendering is not practicable, due to unforeseeable, urgent

circumstances, which are not due to the dilatory conduct of the Entity.

Procurement under the restricted tendering method shall be conducted in accordance

with the applicable provisions of Chapter IV of these Rules.

Rule 26:
(1)

Use of Open Tendering method

Tendering Variants

An Entity shall conduct open or restricted tendering on an international basis, where:

(a)

the goods, works or services are not available under competitive price from
three or more potential bidders in Afghanistan; or

(b)

a national tendering proceeding has failed to identify an acceptable bidder.

(2)

Tendering on an international basis shall be conducted in accordance with the

applicable provisions of Chapter IV of these Rules.

(3)

An Entity may conduct open or restricted tendering using a two-stage tendering , in

the cases outlined in article 39 of the Law.

(4)

Tendering using a two-stage procedure shall be conducted in accordance with the

applicable provisions of Chapter IV of these Rules, as modified by Rule 30.

Rule 27:

Use of Request for Proposals Proceedings

(1)

An Entity shall use the request for proposals proceedings for all procurement of
consultancy services, except where the procurement meets the conditions for use of
single source procurement specified in Rule 29.

(2)

Procurement under the request for proposals method shall be conducted in

accordance with the provisions of Chapter V of these Rules.

Page 19 of 106

Rule 28:
(1)

(2)

An Entity may use request for quotations proceedings for:

(a)

readily available commercially standard goods, which are not specially

manufactured to the particular specification of the Entity, where the
estimated value of the procurement does not exceed the threshold specified
in Article 91 of the Law;

(b)

works, where the estimated value of the procurement does not exceed the
threshold specified in Article 91 of the Law;

(c)

non-consultancy services, where the estimated value of the procurement

does not exceed the threshold specified in Article 91 of the Law.

Procurement under the request for quotations method shall be conducted in

accordance with the provisions of Chapter VI of these Rules.

Rule 29:
(1)

Use of Request for Quotations Proceedings

Use of Single Source Procurement Proceedings

An Entity may use single source proceedings where:

(a)

Where the estimated value of the procurement does not exceed 3000 Afs, or

(b)

only one potential contractor has the technical capability or capacity to fulfil
the procurement requirement within the time required by the Entity or a
particular potential contractor has exclusive rights in respect of the goods,
works or services and no reasonable alternative or substitute exists, in
accordance with the requirements referred in article 24(1) of the Law; or

(c)

there is an emergency need for the goods, works or services, involving an

imminent threat to public health, welfare or safety, or an imminent threat of
damage to property and engaging in tendering proceedings or other
procurement methods would therefore not be practicable.

(2)

When the estimated value of procurement exceeds 3000 Afs the single source
procurement shall meet the conditions set forth in Rule 29(1) (b) or 29(1) (c) above
where the procurement is within the award authoritys threshold limits set out in
Article 91(1) (v) and 91(1) (vi) of the law. Where the single source procurement is
beyond the threshold limits of award authority and require approval of Special
Procurement Commission it should again meet the conditions set forth in Rule
29(1)(b) or 29 (1) c above.

(3)

Procurement under the single source procurement method shall be conducted in

accordance with the applicable section of Chapter VII of these Rules.

Rule 30:
(1)

Two stage-tendering

Tendering using a two-stage procedure shall be conducted in accordance with the

applicable provisions of Chapter IV, except that(a)

any announcement shall clearly state that the tender is being conducted in
two stages and that only technical bids are to be submitted in the first stage;

(b)

the initial bidding document shall request technical information only and shall
contain outline details of the requirement, indicating any technical,
performance or contractual parameters to be met by bidders;

(c)

the initial evaluation will consist of a preliminary examination and technical

evaluation only and shall evaluate the bids against the outline details and
parameters in the bidding document;

Page 20 of 106

(d)

following the initial evaluation, the Procurement Office shall finalize its
requirements and issue a revised bidding document to all bidders who were
substantially responsive to the initial bidding document, requesting both
technical and financial information;

(e)

the Entity may, in the first stage, engage in discussions with any or all
bidders with a view to understanding proposals or to indicate changes
required to make them acceptable and seek the bidders willingness to make
such changes.

(f)

the final evaluation shall consider all technical and financial aspects of the
bids, except where information provided in the initial bid does not need to be
resubmitted or re-evaluated.

Rule 31:

Special Procedures for Design Contests

(1)

In appropriate cases, such as the procurement of architectural designs or urban

planning designs, the Entity may conduct a design contest for the purposes of
selecting a design.

(2)

The procedures to be followed in conducting a design contest are set forth in Annex5.

Rule 32:
(1)

In accordance with the provisions of article 40 of the Law, the award of contracts
involving the private financing of infrastructure construction or rehabilitation, such as
Build-Operate-Transfer, the award of concessions and comparable forms of
contracting shall be subject to the special procedures set forth in Annex-6.

Rule 33:
(1)

Special Procedures for Procurement of Infrastructure on the basis of

private financing and for award of concessions

Cancellation of Procurement Proceedings

The cancellation of procurement proceedings shall be avoided whenever possible,

but is exceptionally permitted in accordance with the provisions of Article 36 of the
Law where:
(a)

the procurement need has ceased to exist or changed significantly;

(b)

insufficient funding is available for the procurement;

(c)

there is a significant change in the required technical details, bidding

conditions, conditions of contract or other details, such that the
recommencement of proceedings is necessary;

(d)

insufficient, or no responsive bids are received;

(e)

there is evidence of collusion among bidders; or

(f)

it is otherwise in the public interest.

(2)

The Procurement Office shall obtain the prior, written approval of the initiation
authority, which approved the procurement requisition in accordance with Rule 13,
before cancelling any procurement proceedings.

(3)

The Procurement Office shall prepare a written request for approval by the Award
Authority to cancel procurement proceedings, which shall clearly state:
(a)

detailed reasons for recommending cancellation;

(b)

the status of the procurement proceedings, including in particular, whether

bids have already been opened under tendering methods; and

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(c)
(4)

whether new procurement proceedings are recommended and, if so, the

modifications recommended.

Where procurement proceedings are cancelled prior to bid opening, any bids
received shall be returned unopened.

Rule 34:

Unsuccessful Proceedings

(1)

Where no responsive bids are received or procurement proceedings are otherwise

unsuccessful, the Procurement Office shall investigate the failed procurement
proceedings and send a report to the Award Authority for approval. The report shall
include the reasons why the procurement was unsuccessful and recommendations on
how any new procurement proceedings should be managed to avoid such failings.

(2)

The investigation shall consider all relevant issues, which may include, but are not
limited to:

(3)

(a)

whether the bidding period was sufficient, considering the factors listed in
Rule 53(5);

(b)

whether the requirements of the solicitation documents and the terms and
conditions of the proposed contract were reasonable and not so excessive as
to deter competition;

(c)

whether any invitation notice was published in an appropriate publication and

on the required date;

(d)

whether any shortlist included sufficient bidders and whether the bidders
included provide the goods, works or services required;

(e)

whether there was any delay in issuing the solicitation documents;

(f)

whether any amendments or clarifications to the solicitation documents

allowed sufficient time for bidders to take them into account in preparing
their bids;

(g)

whether there were other extraneous events or circumstances, which may

have affected the ability of bidders to respond;

(h)

whether the evaluation process was conducted in accordance with these

Rules and the solicitation documents and whether staff responsible for the
evaluation had adequate skills and resources;

(i)

whether there is any suspicion of collusion between potential bidders; and

(j)

whether the original choice of procurement method was appropriate.

The Procurement Office shall make any appropriate recommendations, which may
include, but are not limited to:
(a)

the use of an alternative method of procurement;

(b)

amendments to the solicitation documents, including bidding requirements,

the type of contract or the terms and conditions of the proposed contract;

(c)

alternative publication of any invitations to bid, similar notices or solicitation

documents or a revised shortlist; and

(d)

the introduction of international competition.

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CHAPTER III - ELIGIBILITY AND QUALIFICATIONS OF BIDDERS

SECTION A General provisions
Rule 35:

Eligibility of Bidders

(1)

In order to participate in public procurement, a bidder shall be eligible in accordance

with the provisions of Article 17(1) of the Law.

(2)

The Entity shall clearly state the eligibility requirements in all solicitation documents
and shall, where it deems fit, require bidders to provide signed statements or
documentary evidence to certify their eligibility.

(3)

The Entity shall clearly state any documentation required as evidence of a Bidders
eligibility. This may include, but shall not be limited to :

(4)

(a)

copies of the bidders certificate of registration, certificate of incorporation,

trading licence or similar document;

(b)

copies of the bidders tax registration, tax clearance certificates or similar

document;

(c)

a signed statement that the bidder does not have a conflict of interest in
relation to the procurement;

(d)

a signed statement that the bidder, or any of its directors or officers, have
not been convicted of any criminal offence relating to professional conduct or
the making of false statements or misrepresentations as to its qualifications
to enter into a procurement contract within a period of three years preceding
the commencement of procurement proceedings; and

(e)

a signed statement that the bidder is not subject to debarment pursuant to

article 70 of the Law, or that any of its directors or officers have not been
involved in a bidder or contractor currently subject to debarment.

In determining the documentation required as evidence of a Bidders eligibility, the

Entity shall ensure that the requirements do not discriminate against foreign bidders,
but permit the submission of equivalent documents from the relevant authorities in
the foreign bidders country of origin or submission of statements certifying that
equivalent documentation is not issued in the foreign bidders country of origin.

Rule 36:

Qualifications of Bidders

(1)

In order to be awarded a contract, a bidder shall be determined to be qualified, in

accordance with article 17(3) of the Law.

(2)

The Entity shall clearly state any qualification criteria in the pre-qualification or
solicitation documents and shall, where it deems fit, require bidders to provide
signed statements or documentary evidence to certify their qualifications.

Rule 37:

Qualification Criteria

(1)

Qualification criteria shall be designed to ensure that the bidder is capable of

effectively performing the proposed contract.

(2)

Qualification criteria shall be limited to those necessary for the effective performance
of the proposed contract and shall not be unduly restrictive or designed to reduce
competition.

(3)

Qualification criteria shall be prepared for each procurement requirement, taking into
account the size, complexity and technical requirements of the proposed contract.

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(4)

(5)

Qualification criteria may relate to(a)

technical competence and resources, including, but not limited to, the
availability of sufficient manpower, the qualifications and experience of key
personnel or managers, available equipment, manufacturing or construction
facilities;

(b)

available capacity to perform the proposed contract, including, but not limited
to available manufacturing or production capacity, taking into account other
commitments or manufacturers authorizations to supply;

(c)

financial position, including, but not limited to financial soundness, sufficient

turnover or sufficient cash flow; and/or

(d)

experience and satisfactory performance of similar contracts, taking into

account relevant factors, including, but not limited to references and litigation
record.

The Entity shall state in pre-qualification or bidding documents, the documentary

evidence required from bidders, as evidence of their qualifications.

Rule 38:
(1)

Qualification Requirements for Subcontractors and Joint Venture

Partners

Solicitation or, where applicable, pre-qualification documents shall clearly state

(a)

whether qualification criteria apply to lead contractors, subcontractors or

partners in a joint venture, consortium or association;

(b)

whether criteria will be applied individually or collectively to each contractor,

subcontractor or partner; and

(c)

any alternative criteria which apply to subcontractors or partners in a joint

venture, consortium or association.

Rule 39:

Database of Bidders

(1)

Procuring entities, or any special agency designated to conduct the procurement of

common use items in accordance with Rule 182, may establish database and
standing lists in order to provide information on potential and eligible bidders.

(2)

Database of bidders may also be used to register bidders who are eligible for any
scheme to promote small enterprises in accordance with Rule 4 or any preference
scheme.

(3)

In developing and maintaining database of bidders, the entity responsible for the list
shall comply with the requirements of Article 19 of the Law.

SECTION B Procedure for verification of qualifications

Rule 40:

Verification of Bidders Qualifications

(1)

The Entity shall verify the qualifications of bidders where the successful completion
of the contract is, to a significant extent, dependent on the contractors
qualifications.

(2)

The Entity may verify the qualifications of bidders through either pre-qualification
proceedings in accordance with Rule 42 or post-qualification proceedings in
accordance with Rule 41.

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(3)

Bidders qualifications for consultancy services shall be verified as part of the short
listing process in accordance with rule 82, based on information provided in response
to notices seeking expressions of interest.

Rule 41:

Use of Post-Qualification

(1)

Post-qualification may be used to determine whether the bidder who submitted the
lowest evaluated responsive bid is qualified to perform the contract effectively.

(2)

Post-qualification may be used where no pre-qualification has been carried out.

(3)

Post-qualification proceedings shall be conducted in accordance with the provisions

of Rule 78.

Rule 42:

Use of Pre-Qualification

(1)

Pre-qualification may be used to restrict bidding to a list of bidders who have been
determined, in advance of the submission of bids, to possess the qualifications
necessary to perform the contract satisfactorily.

(2)

Pre-qualification may be used where

(a)

the goods, works or services are highly complex, specialised or require

detailed design or methodology;

(b)

the costs of preparing a detailed bid would discourage competition unless

pre-qualification were held; or

(c)

the evaluation will be particularly detailed and the evaluation of a large

number of bids would thus require excessive time and resources.

(3)

Pre-qualification may also be used to pre-qualify bidders for a group of similar

contracts or to facilitate the preparation of shortlists under the restricted tendering or
request for quotations methods.

(4)

Pre-qualification proceedings shall be conducted in accordance with the provisions of

Rules 43 to 46.

Rule 43:

Pre-qualification Announcement

(1)

Where the Entity conducts a pre-qualification pursuant to Rule 42, it shall publish an
invitation to pre-qualify notice, inviting all potential bidders to submit applications to
pre-qualify.

(2)

Invitation to pre-qualify notices shall contain at least:

(3)

(a)

the name, address and contact details of the Entity;

(b)

an outline of the procurement requirement, including the nature and quantity

of goods, works or services and the location and timetable for delivery or
performance of the contract;

(c)

a statement of the key requirements and criteria to pre-qualify;

(d)

instructions on obtaining the pre-qualification documents, including any price

payable and the language of the documents; and

(e)

instructions on the location and deadline for submission of applications to

pre-qualify.

The invitation to pre-qualify notice shall be published in accordance with Rule 50.

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Rule 44:

Pre-qualification Documents

(1)

The Procurement Office shall promptly issue pre-qualification documents to all

bidders who request them and shall maintain a record of all bidders to whom prequalification documents are issued.

(2)

The Pre-qualification Document shall contain all the information required by Bidders
to prepare and submit applications to pre-qualify and shall include at least(a)

the name, address and contact details of the Entity;

(b)

details of the procurement requirement, including the nature and quantity of

goods, works or services and the location and timetable for delivery or
performance of the contract;

(c)

the qualification criteria in accordance with rule 37;

(d)

instructions on the preparation of applications to pre-qualify, including any

standard forms to be submitted and the documentary evidence and
information required from bidders;

(e)

instructions on the sealing, labelling and submission of applications to prequalify, including the location and deadline for submission; and

(f)

information on how applications will be evaluated.

(3)

The Entity shall allow a sufficient period of time, to enable bidders to prepare and
submit their applications to pre-qualify.

(4)

In determining the duration of the period for submission of applications to prequalify, the Procurement Office shall take into account the factors in rule 53(5).

(5)

The Procurement Office shall promptly respond to all requests for clarification, in
accordance with the procedure in Rule 56.
(a)

within ten (10) working days for national tendering; and

(b)

Within fourteen (14) working days for international tendering.

Rule 45:

Evaluation of Applications

(1)

All applications to pre-qualify received on time shall be evaluated by the Procurement

Office on a pass or fail basis against the criteria in the pre-qualification document.

(2)

The Procurement Office shall prepare a record of its evaluation of applications, which
shall clearly state which bidders were determined to be qualified and the reasons
why the rejected bidders were determined to be not qualified.

(3)

The results of the pre-qualification, including the record of the evaluation of

applications, shall be sent to the Procurement Committee and submitted to the
Award Authority for approval, at the time of obtaining approval for the bidding
documents.

(4)

The Entity shall promptly notify each bidder submitting an application to pre-qualify
whether or not it has been pre-qualified and shall make available to any member of
the general public, upon request, the names of all bidders that have been prequalified. Only bidders that have been pre-qualified are entitled to participate further
in the procurement proceedings.

(5)

The Entity shall invite all pre-qualified bidders to submit bids.

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Rule 46:
(1)

Pre-qualification for a Group of Contracts

Where pre-qualification is conducted for a group of contracts pursuant to rule 42(3),

the procedure for pre-qualification shall be in accordance with the provisions of this
section, except that(a)

the invitation to pre-qualify notice and the pre-qualification document shall

state the time period covered by the pre-qualification and details of the
estimated number, value and timing of contracts;

(b)

a limit on the number or total value of contract awards to a bidder may be

made, on the basis of their qualifications;

(c)

the list of pre-qualified bidders shall be updated periodically; and

(d)

pre-qualification information shall be verified prior to contract award.

CHAPTER IV - PROCEDURES FOR TENDERING

Rule 47:
(1)

Use of Tendering Procedures

Procuring entities shall ensure that they have complied with all relevant requirements
of Chapter II of these Rules, prior to initiating tendering procedures for procurement
of Goods, Works and Non-Consultancy Services in accordance with this chapter.

SECTION A Invitation of Bids

Rule 48:
(1)

Inviting Bids

Bids shall be invited(a)

through the publication of an announcement of tendering proceedings in the

case of open tendering, where no pre-qualification has been conducted; or

(b)

from the list of pre-qualified bidders in the case of open tendering, where a
pre-qualification has been conducted; or

(c)

from a shortlist of bidders in the case of restricted tendering; or

(d)

through the publication of an announcement of tendering proceeding in the

case of restricted tendering pursuant to rule 25(1)(b) or 25(1)(c).

Rule 49:

Contents of Announcement of Tendering Proceedings

(1)

Where the Entity publishes an announcement of tendering proceedings pursuant to

rule 48(1)(a) or 48(1)(d), this shall be published in the form of an invitation to
tender notice, inviting all potential bidders to submit bids.

(2)

Invitation to tender notices shall contain at least(a)

the name, address and contact details of the Entity;

(b)

the nature of the procurement requirement, including the quantity of goods,

works or services and the location and timetable for delivery or performance
of the contract;

(c)

an indication of the procurement method being used;

(d)

a statement of any key technical requirements, qualification requirements and

evaluation criteria, such as a requirement for the provision of local after-sales
services or the application of a margin of preference;

(e)

instructions on obtaining the bidding documents, including any price payable

and the language of the documents;

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(f)

information as to any applicable bid-security requirement; and

(g)

instructions on the location and deadline for submission of bids.

(3)

Where the funds to pay for the procurement have not yet been allotted, under the
procedure in rule 14(3), this shall be prominently stated in the invitation to tender
notice.

(4)

The invitation to tender notice shall be published in accordance with rule 50.

Rule 50:
(1)

Publication of Announcement

The invitation to tender notice, or the invitation to pre-qualify notice, shall be:
(a)

published in the printed media, in at least one publication, which must be of

wide enough circulation to reach sufficient bidders to ensure effective
competition;

(b)

broadcast over the radio or television, on the stations and programmes and
at a time most likely to target potential bidders; and

(c)

(2)
(3)

to the extent feasible, published on the internet, including any website

established by the PPU.
Where tendering is international, the notice shall also be published in media of wide
international circulation or on widely read internet sites, in the English language.
Where the Procurement Office believes it is necessary to ensure wide competition, it
may send the notice directly to identified potential bidders after the date of
publication of the notice. The Procurement Office shall keep a record of any bidders
to whom the notice is sent directly, which shall form part of the procurement record.

Rule 51:
(1)

(2)

Shortlists

Where the Entity invites bids from a shortlist of bidders pursuant to Rule 48(1)(c),
the shortlist shall include(a)

all potential bidders, where restricted tendering is used on the grounds of a

limited number of sources, in accordance with rule 25(1)(a);

(b)

sufficient bidders to ensure effective competition, and in any case at least

three bidders, where restricted tendering is used on the grounds referred to
in Rule 25(1)(b); and

(c)

at least three bidders, wherever possible, where restricted tendering is used

on the grounds of urgency, in accordance with rule 25(1)(c).

In developing a shortlist, the Procurement Office may use(a)

standing lists maintained in accordance with Rule 39;

(b)

lists of pre-qualified bidders;

(c)

its own knowledge of the market;

(d)

any other appropriate sources of information.

(3)

Bidders shall not be included on a shortlist unless they are expected to fully satisfy
the Entitys requirements, including those related to eligibility, qualifications,
capacity, resources and experience.

(4)

The Bidders included on the shortlist shall not all have the same ownership. Where
there is more than one potential bidder but all potential bidders have the same

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ownership, the procurement shall be considered a single source procurement in

accordance with Rule 29(1)(b).
(5)

Where the Entity uses restricted tendering on the grounds of a limited number of
sources, in accordance with Rule 25(1)(a), it shall also publish a notice, in
accordance with rule 50, which shall state(a)

the nature of the procurement requirement;

(b)

that the procuring entity is using restricted tendering on the grounds of a

limited number of sources;

(c)

the proposed shortlist of bidders; and

(d)

that any potential bidder requiring information on the procurement

requirement or wishing to participate in the procurement may contact the
Procurement Office of the Entity, and

(e)

the deadline for any such request.

(6)

The publication of the notice referred to in sub-Rule 51(5) is not required when
resort to restricted tendering is made on the grounds referred to in Rule 25(1)(b) or
25(1)(c).

(7)

The proposed shortlist shall be approved by the Award Authority, prior to issue of the
bidding documents.

Rule 52:

Contents of Bidding Documents

(1)

Procuring entities shall use the appropriate standard bidding document issued by the
PPU for drafting individual bidding documents.

(2)

The bidding documents shall provide bidders with all the information that they
require in order to submit bids that are responsive to the needs of the Entity. In
particular, the bidding documents shall include(a)

a clear description of the goods, works or services required, in accordance

with Rules 15, 17 or 18, as appropriate;

(b)

instructions on the preparation of bids, including any standard forms to be

submitted and the documentary evidence and information required from
bidders;

(c)

a statement of whether alternative bids are permitted and any instructions

relating to alternative bids, in accordance with Rule 73;

(d)

instructions on the sealing, labelling and submission of bids, including the

location and deadline for submission and procedures for the withdrawal,
modification or replacement of bids;

(e)

any qualification criteria in accordance with Rule 37 and verification of prequalification information;

(f)

information on the methodology for the evaluation of bids, any evaluation

criteria to be applied and the manner in which the criteria shall be applied in
accordance with Rule 66;

(g)

any margin of preference to be applied;

(h)

information on the procedure for contract award, including the requirement

for publication of a notice of proposed award and the bidders right to appeal;

(i)

the type of contract to be awarded;

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(3)

(j)

the terms and conditions of the proposed contract in accordance with Rule
141; and

(k)

information on the Bidders right to appeal under the administrative review

process and on the Governments policy on fraud and corruption, including
the debarment of bidders.

(l)

any other information that might be required in accordance with the Law or
prescribed by the PPU.

Where the funds to pay for the procurement have not yet been allotted, under the
procedure in Rule 14(3), this shall be prominently stated in the bidding document.

Rule 53:
Minimum Bidding Periods
(1)
The bidding documents shall be ready for distribution prior to the publication of
announcement of the invitation.
(2)

The bidding period shall start on the date of the first publication of the
announcement and shall finish on the date of the bid submission deadline.

(3)

The minimum bidding period shall be:

(a)

Twenty-one (21) working days for open tendering, where the tendering is
national;

(b)

Thirty (30) working days for open tendering, where the tendering is
international;

(c)

Fourteen (14) working days for restricted tendering, where the tendering is
national;

(d)

Twenty one (21) working days for restricted tendering, where the tendering
is international.

(4)

Notwithstanding the provisions of sub-Rules 53(3)0(c) and 53(3)(d), where restricted

tendering is used on grounds of urgency, in accordance with Rule 25(1)(c), the
minimum bidding period shall not apply.

(5)

In determining the appropriate bidding period for each requirement, the

Procurement Office shall take into account, in addition to the minimum bidding
period:
(a)

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

(b)

any need for bidders to submit authenticated legal documents or similar

documents as part of their bids and the time required to obtain such
documents;

(c)

the location of short-listed or potential bidders and the time required to

obtain the bidding document and for the delivery and submission of bids to
the Entity;

(d)

the extent of anticipated sub-contracting; and

(e)

any restrictions relating to the time the goods, works or services are required.

Rule 54:
(1)

Issue and Sale of Bidding Documents

Bidding documents shall be issued, as appropriate to(a)

all bidders responding to the invitation to tender notice; or

(b)

all bidders on the shortlist or list of pre-qualified bidders.

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(2)
(3)

Where the bidding documents are issued to short-listed or pre-qualified bidders, the
bidding documents shall be issued to all bidders at the same time.
The entity shall make all arrangements to deliver hard copies to each bidder who will
respond to the invitation for bids.

(4)

As a step towards increasing use of information technology in public procurement

arrangements may be made for allowing each bidder to download the bidding
documents from the entity Website. The alternative arrangements for providing the
bidding documents through e-mail/ flash drive/ CD are also to be put in place.

(5)

When delivering bidding documents, the procuring entity must keep complete record
of the name of the bidder, its contact details and the date and time when the bidding
documents were given.
(a)

in case of hard copy or soft copy, either through flash drive or CD, received
at the Procurement Office as provided for in the Invitation for Bid, the
authorized representative of the Bidder shall sign the Bidding Documents
delivery registry for records;

(b)

in case of download from the procuring entity Website, the Bidder shall enter
its data in order for the Procuring entity to identify the Bidder and keep
record;

(c)

in case of delivery through email, the bidder should provide its name and
contact details in its requisition email;

(6)

The Procurement Office shall maintain a record of all bidders to whom the bidding
documents are issued, and record all information and data given by the Bidders.

(7)

The Procuring entity shall not disclose the name of Bidders who asked for the
bidding documents. The list of potential Bidders shall remain strictly confidential up
to the opening of the Bids.

(8)

Bidding Documents shall be free of charge to all bidders referred to in paragraph 1

(a) and (b) of this Rule, exceptionally the Entity may charge a fee for the bidding
documents, in such cases, the price shall be calculated to cover the costs related to
printing, copying and distribution of the documents only and shall not include any
element of profit.

(9)

All amendments shall be provided to Bidders free of charge to all Bidders to whom
the Bidding documents have been issued.

(10)

The Procuring entity shall not make any profit on the sale of bidding documents.

(11)

In the circumstances of large bidding documents, when the cost of printing and
distribution cannot be covered by the Procurement Office budget, the Procuring
entity may sell hard copies only of the Bidding Documents, provided that the price is
calculated only to recover the cost of printing, copying and distributing.

(12)

Where hard copies are sold,

(13)

(a)

The procuring entity shall allow all potential Bidders to inspect the documents
before buying them. A hard copy must be available for inspection at the
Procurement Office;

(b)

The Procurement Office shall issue a signed and stamped receipt for the
Bidding Documents.

Where hard copies of the Bidding Documents are to be sold, the Procuring entity
shall announce it together with the price in the Invitation for Bid.

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(14)

Where hard copies of the Bidding Documents are to be sold, the Procuring entity
shall encourage potential Bidders to download directly the Bidding Documents from
the Website or get it in a soft copy, either through flash drive, CD, or email.

Rule 55:

Bid Securities

(1)

An Entity may require bid securities, in order to deter irresponsible bids and
encourage bidders to fulfil the conditions of their bids. The bidding documents shall
state any requirement for a bid security.

(2)

The value of any required bid security shall always be expressed as a fixed amount
and not as a percentage. The amount shall be between two (2) and five (5) percent
of the estimated value of the contract.

(3)

In determining the amount of bid security required, the Procurement Office shall
take into account the cost to bidders of obtaining a bid security, the estimated value
of the contract and the risk of bidders failing to fulfil the conditions of their bids. The
amount shall be high enough to deter irresponsible bids, but not so high as to
discourage competition.

(4)

The bidding documents shall state that bid securities must be:
(a)

in accordance with the format and wording provided in the bidding

document;

(b)

in a form acceptable to the Entity, which may be:

(i)

cash;

(ii)

a bank guarantee;

(iii)

an equivalent instrument, such as a stand-by letter of credit;

(iv)

property pledge by the bidder; or

(v)

any alternative form acceptable to the Entity, including any forms

permitted under schemes issued by the PPU to facilitate access to
securities by small enterprises;

(c)

from an institution acceptable to the Entity in the case of instruments issued

by financial institutions; and

(d)

valid for the period prescribed in the bidding document, which shall normally
be twenty-eight (28) days beyond the expiry of the bid validity period.

(5)

Notwithstanding the provisions of sub-Rule 55(1), the bidding documents may

instead of requiring bid securities of the type referred to in sub-Rule 55(4) provide
alternative security arrangements to secure a bid, in accordance with Article 45 of
the Law. Such alternative security arrangements may include a requirement that
bidders sign and submit with their bids a bid-securing declaration in a form provided
in the bidding documents. In accordance with such a declaration, a bidder, in any of
the circumstances cited in Article 42(2) of the Law, would be subject to
disqualification from the Entitys bidding opportunities for a specified period of time.

(6)

The conditions for forfeiture of a bid security, in accordance with article 42(2) of the
Law, shall be specified in the bidding documents.

(7)

The Procurement Office shall release bid securities promptly to unsuccessful bidders
upon expiry of the term of the security or formation of a contract with successful
bidder and submission of any required performance security, whichever is earlier.

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(8)

The bid security of the successful bidder shall not be released, until any required
performance security has been received.

(9)

The Procurement Office shall manage bid securities in accordance with rule 160.

Rule 56:

Clarification and Amendment of Bidding Documents

(1)

The bidding document shall state that a Bidder may seek clarification of the bidding
documents and shall state the final date after which such clarification may not be
sought. Such date shall allow adequate time for potential bidders, including foreign
bidders, to receive and study the bidding documents. The final date after which
clarification may not be sought shall be fourteen (14) working days prior to the
deadline for submission of bids-

(2)

Where a request for clarification is received, the Procurement Office shall promptly
provide a clarification in writing. The clarification shall be copied to all bidders and
shall include a description of the inquiry, but without identifying the source of the
request.

(3)

At any time prior to the deadline for submission of bids, the Entity may, either at its
own initiative or in response to a request for clarification from a Bidder, amend the
bidding documents by issuing an addendum.

(4)

Any addendum shall be issued in writing and the same information shall be provided
to all Bidders at the same time. All addenda shall be numbered sequentially.

(5)

All clarifications and addenda to the bidding document shall be binding on bidders.

Rule 57:
Extension of Bidding Period
(1)
To give Bidders reasonable time in which to take a clarification of or addendum to
the bidding documents into account in preparing their bids, the Entity, may, at its
discretion, extend the deadline for the submission of bids, through the issue of an
addendum in accordance with rule 56.
Rule 58:
Pre-bid Conferences and Site Visits
(1)
The Entity may organise:
(a)
a pre-bid conference in order to brief potential bidders or to offer the
opportunity for them to seek clarifications; and/or
(b)
a site visit, to enable bidders to gain access to the site for delivery of any
proposed works or services.
(2)

Details of pre-bid conferences and site visits, including the date, time and location,
shall be included in the bidding documents and, where possible, in the invitation to
bid notice.

(3)

The date of any pre-bid conference or site visit shall be sufficiently early in the
bidding period, to enable bidders to take the information into account in preparing
their bids, but shall not be so early as to make attendance difficult for any potential
bidders.

(4)

The Procurement Office shall prepare minutes of any pre-bid conference and shall
promptly send them to all bidders to whom the bidding documents have been issued.
The minutes shall include:
(a)

all information provided as part of any briefing;

(b)

details of any clarifications requested, but without identifying the source of

the inquiry; and

(c)

the details of responses provided to clarifications.

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(5)

Following any pre-bid conference or site visit, the Procurement Office shall, where
required, issue clarifications or amend the bidding documents, in accordance with
Rule 56.

Rule 59:
Submission of bids
(1)
The bidder shall submit the bid signed, and accompanied by a power of attorney, if
so required, in the required number of copies and in a sealed envelope, as
prescribed in the bidding documents. Bidders shall submit their technical and
financial proposals enclosed in a single envelop, in the manner prescribed in the
bidding documents.
Rule 60:
Withdrawal, Substitution or Modification of Bids
(1)
The bidding documents shall state that bidders may withdraw, substitute or modify
their bids at any time prior to the deadline for submission of bids, without forfeiting
any bid security. The bidding documents shall state the procedures to be followed
for withdrawal, substitution or modification.
SECTION B Receipt and Opening of Bids
Rule 61:
Receipt of Bids
(1)
The Procurement Office shall make arrangements for the receipt and safe-keeping of
bids until the deadline for submission of bids, which may include:
(a)

the use of a bid box, in which bidders are responsible for depositing their bids
directly and which shall remain locked until the time for bid opening; or

(b)

the receipt of bids by staff of the Procurement Office, who shall be

responsible for issuing signed receipts, showing the precise date and time of
receipt and keeping bids in a secure location until the time for bid opening.

(2)

Where any bid is too large for the bid box, or samples are required to be submitted
separately, the Procurement Office shall receive and keep the bid, or samples, in
accordance with sub-Rule 61(1)(b).

(3)

Where the Procurement Office is receiving bids and issuing receipts, it shall maintain
a record of all bids received, indicating the name of each bidder, the date and time
of receipt and the name of the person responsible for receipt.

(4)

Bids shall only be received electronically, or by any means which do not permit
sealed bids, where authorised by the PPU through circulars.

(5)

The Entity shall not be held liable for the loss or delay in delivery of any bid delivered
by mail or courier.

(6)

The Procurement Office shall ensure that appropriate staff are available at the
location for submission of bids or that bidders have access to the bid box, for a
reasonable period of time prior to the deadline.

(7)

The Entity shall not disclose the number or identity of bids received, prior to the bid
opening, other than to public officials who require the information as part of their
official duties.

Rule 62:
(1)

Bid Closing

Bidding shall be closed at the precise date and time of the deadline for submission of
bids stated in the bidding documents. Where a bid box is used for the receipt of bids,
the Procurement Office shall seal the bid box at the date and time of the deadline
and ensure that no further bids are placed in the bid box.

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(2)

The Procurement Office shall assign suitable, experienced staff to manage the bid
closing.

(3)

Any bid that is received after the date and time of the deadline for submission of
bids shall not be accepted, but shall be declared late.

(4)

Late bids shall be labelled as late, stating the date and time of receipt and shall be
returned unopened to the bidder. Any late bid which is not labelled with the bidders
name shall be left unopened and destroyed.

(5)

Immediately after the bid closing, the bid box or bids received shall be taken to the
location for bid opening.

Rule 63:
Public Opening of Bids
(1)
The Procurement Committee shall open in public all bids received on time at the
date, time and location indicated in the bidding documents. The time for bid opening
shall be the same as, or immediately after, the time of the deadline for submission of
bids.
(2)

The opening of bids shall be managed by the Procurement Committee.

(3)

Bidders, or their representatives, shall be permitted to attend the opening and details
of the bid opening shall be included in the bidding documents.

(4)

At the opening, the chairman of the Procurement Committee shall first open
envelopes marked WITHDRAWAL, and the name of the bidder shall be read out. Bids
for which an acceptable notice of withdrawal has been submitted shall not be
opened. Subsequently, all envelopes marked MODIFICATION shall be opened and the
submissions therein read out in appropriate detail. The chairman shall then open
each bid and read out the name and address of the bidder, the bid price, discounts if
any, the price of any alternative bids.

(5)

Any important infirmity noticed such as the absence of a bid security or discrepancy
between figures and words, absence of signature, unsigned corrections, or any other
material deviation from the bidding documents shall be announced and recorded in
the minutes which shall be signed by those present.

(6)

The read out matter shall be circled and initialled by the chairman of the committee.

(7)

The committee shall record any samples, models, and catalogues submitted by
bidders and shall refer them to the Entity for their safe custody.

(8)

With the exception of late bids, no bids shall be accepted, rejected or evaluated in
any way at the bid opening. Any discrepancies or missing documents shall be noted
in the record of bid opening.

(9)

The Procurement Office shall make a record of the bid opening, which shall be kept
as part of the procurement record. The record shall include at least:

(10)

(a)

the name of all bidders whose bids were opened;

(b)

the presence or absence of a bid security, if one was required;

(c)

the total price of the bid, including the currency and amount and any
discounts offered, except where the opening is of technical bids only;

(d)

the names of all staff and bidders representatives attending the opening.

All bidders representatives attending the bid opening shall be requested to sign the
record, but the absence of any signature shall not invalidate the record.

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(11)

The opened bids shall immediately be taken to a secure location, where they shall be
kept until the evaluation begins.

(12)

The tendering proceedings shall not be cancelled on the sole ground that a particular
minimum number of bids have not been submitted.

SECTION C Evaluation of Bids

Rule 64:

Confidentiality and integrity of bid evaluation

(1)

Following opening of the bids, and until notice has been given to the successful
bidder of the selection of its bid for award, no bidder shall make any unsolicited
communication to the Entity or try in any way to influence the Entitys examination
and evaluation of the bids.

(2)

Information relating to the examination, clarification, evaluation and comparison of

bids shall not be disclosed to bidders or to any other person not involved officially in
the process or in the decision on which bid should be accepted, except as provided in
the Law and these Rules.

Rule 65:
Evaluation of Bids Committees
(1)
The Entity shall appoint an Evaluation of Bids Committee for each procurement
requirement whose estimated value exceeds the threshold prescribed in guidelines
issued by PPU in this regard. The Evaluation of Bids Committee shall be responsible
for the evaluation of bids and the preparation of an evaluation report with
recommendations for submission to the respective award authority.
(2)

The number and level of members of the Evaluation of Bids Committee shall depend
on the value and complexity of the procurement requirement, but shall in all cases
be a minimum of three members.

(3)

The Evaluation of Bids Committee shall include skills, knowledge and experience
relevant to the procurement requirement, which may include:

(4)

(a)

technical skills relevant to the procurement requirement;

(b)

end user representation;

(c)

procurement and contracting skills;

(d)

financial management or analysis skills; or

(e)

legal expertise.

Where no Evaluation of Bids Committee is required, the evaluation shall be

conducted by the person or persons designated by the head of the Entity.

Rule 66:
(1)

(2)

Evaluation Methodology and Criteria

The methodology for the evaluation of bids shall consist of:

(a)

a comparison of each bid to the technical requirements of the description of

goods, works or services on a pass or fail basis, to determine whether the
bids are substantially responsive; and

(b)

the determination of the bid with the lowest evaluated cost.

Where appropriate, the Entity may include evaluation criteria additional to price in
the bidding documents, which shall be taken into account in determining the
evaluated price of each bid. Such evaluation criteria shall be related to the
performance, characteristics or terms and conditions of a bid, such as delivery or

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completion schedule, payment schedule, the cost of spare parts or after sales
service, operating or maintenance costs or the productivity of equipment.
(3)

Any additional evaluation criteria shall be designed to measure the advantage or

disadvantage of a factor to the Entity. Such advantage or disadvantage shall be
quantified in monetary terms and applied as an increase or decrease to the bid price,
for purposes of evaluation only. The bidding documents shall state the methodology
for calculating and applying the adjustment to the bid price.

Rule 67:
Correction of Non-Conformities, Errors and Omissions
(1)
Where a bid is substantially responsive, the Entity may waive, clarify or correct any
non-conformity, error or omission, which does not constitute a material deviation.
(2)

The non-conformity, error or omission shall be quantified in monetary terms to the

extent possible and taken into account in the financial evaluation and comparison of
bids.

(3)

The Entity may correct purely arithmetical errors in bids in accordance with the
procedure stated in the bidding document.

(4)

Bidders shall be notified of any arithmetic corrections and requested, in writing, to

agree to the correction.

(5)

Any bid of a Bidder who does not accept the correction of an arithmetical error shall
be rejected and its bid security may be forfeited.

Rule 68:
Clarification of Bids
(1)
The Entity may seek clarification from a bidder of its bid.
(2)

The request and the clarification shall only be in writing.

(3)

The request for clarification shall not seek and the bidder shall not be permitted to:
(a)

amend its bid price, except to accept the correction of arithmetic errors;

(b)

change the substance of the bid; or

(c)

substantially alter anything which is a deciding factor in the evaluation.

(4)

Any clarification received, which is not in response to a request from the Entity, shall
not be taken into account.

(5)

The failure of a bidder to reply to a request for clarification may result in the
rejection of its bid.

Rule 69:
Preliminary Examination
(1)
The Evaluation of Bids Committee shall conduct a preliminary examination to
determine whether bids are complete and are responsive to the basic instructions
and requirements of the bidding document. The preliminary examination shall
determine whether(a)

the bid has been submitted in the correct format;

(b)

any required bid security has been submitted, in the correct form and amount
and valid for at least the period required;

(c)

the bid has been submitted without material reservations or deviations from
the terms and conditions of the bidding document;

(d)

the bid has been correctly signed and authorised;

(e)

the correct number of copies of the bid have been submitted;

(f)

the bid is valid for at least the period required;

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(g)

all key documents and information have been submitted;

(h)

any required samples have been submitted; and

(i)

the bid meets any other key requirements of the bidding document.

(2)

Any deviations, which are considered to be material deviations, shall result in

rejection of the bid and such bids shall not be subject to technical evaluation.
Deviations which are considered to be non material shall not result in rejection of the
bid.

(3)

The preliminary examination shall also determine whether Bidders are eligible, where
this has not been determined prior to inviting bids.

Rule 70:
Assessing Responsiveness of Bids
(1)
The Entitys determination of a bids responsiveness shall be based on the contents
of the bid itself, subject to any clarifications received pursuant to Rule 68.
(2)

A substantially responsive bid is one which conforms to all the instructions,

requirements, terms and conditions of the bidding documents, without material
deviation, reservation or omission.

(3)

A material deviation, reservation, or omission is one that:

(a)

affects in any substantial way the scope, quality, or performance of the

works, services or supplies specified in the bidding documents; or

(b)

would limit in any substantial way, inconsistent with the bidding documents,
the Entitys rights or the bidders obligations under any resulting Contract; or

(c)

if corrected would unfairly affect the competitive position of other bidders

presenting substantially responsive and compliant bids.

(4)

Any bid which contains a material deviation, reservation or omission, and is therefore
not substantially responsive, shall be rejected and may not subsequently be made
responsive by the bidder or the Entity.

(5)

The classification of a deviation, reservation or omission as material or nonmaterial

shall be determined by the objectives and requirements of the individual
procurement requirement, as stated in the bidding document, and shall take into
account the impact on key factors, such as cost, risk, time and quality.

(6)

Material deviations, reservations or omissions may typically include:

(7)

(a)

unacceptable time schedules, where it is stated in the bidding document that

time is of the essence;

(b)

unacceptable alternative technical details, such as design, materials,

workmanship, specifications, standards or methodologies; or

(c)

unacceptable counter-proposals with respect to key contract terms and

conditions, such as payment terms, price adjustment, liquidated damages,
sub-contracting or warranty.

The classification of deviations, reservations and omissions as material or

nonmaterial shall be consistently applied to all bids.

Rule 71:
Technical Evaluation
(1)
The Evaluation of Bids Committee shall conduct a technical evaluation by comparing
each bid to the technical requirements of the description of goods, works or services
in the bidding documents, to determine whether the bids are substantially
responsive.

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(2)

The technical evaluation shall determine whether bids are, or are not, substantially
responsive to the technical standard defined in the bidding documents and shall not
be used to assess the relative quality of bids or to award points in any way.

(3)

The factors taken into account shall be those indicated in the bidding document only
and may include, but not be limited to:
(a)

conformity to specifications, standards, drawings or terms of reference,

without material deviation or reservation;

(b)

satisfactory understanding of an assignment, as demonstrated by any

methodology or design; or

(c)

suitable staffing or arrangements for supervision or management of an

assignment.

(4)

The evaluation shall not take into account any requirements which were not included
in the Bidding Document.

(5)

Any material deviations shall result in rejection of the bid and such bids shall not be
subject to financial evaluation and comparison.

(6)

Non material deviations may be corrected in accordance with Rule 67 or clarified in

accordance with Rule 68.

Rule 72:
Adjustment of bid prices for minor deviations from technical aspects
(1)
The cost of minor omissions or missing items in the scope of supply, services, and
the like shall be added to the bid price to allow for bid comparison on an equal basis.
The Entity shall base the price adjustment on a reasonable estimate of the cost or
based on the fair price of the omitted item. In the event of uncertainty, the average
price quoted by the other responsive Bidders may be used. The cost implication of
the minor deviations, if any, shall be taken into account in accordance with Rule
67(2).
(2)

All bid-price adjustments shall be made by the Evaluation of Bids committee, without
any consultations with the Bidder regarding the justification for the amount of the
adjustment.

(3)

Adjustments for any minor variations in payment terms, if acceptable, may be

evaluated at the prevailing applicable rates.

(4)

The bidding documents may provide that:

(a)

when a bid contains so many deviations requiring adjustments to the bid

price that the total value of all adjustments exceeds fifteen percent of the bid
price, or

(b)

when only one or a few deviations have a relatively high monetary value, as
would be the case with deviations regarding retention money or liquidated
damages or liabilities,

the bid shall be rejected as non-responsive.

Rule 73:
Alternative Bids
(1)
Alternative bids shall not be permitted, except where specifically indicated in the
bidding documents.
(2)

The Entity may permit alternative bids, where it is anticipated that bidders may be
able to offer goods, works or services which do not conform precisely to the
description of requirements, but which meet the objectives of the procurement in an
alternative manner. Alternative bids may be permitted in areas of rapidly changing

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technology or where a need could be satisfied in a number of different ways and the
Entity wishes to encourage cost efficient and technically innovative approaches by
bidders.
(3)

(4)

Where alternative bids are permitted, the bidding documents shall state that the
alternative bid does not need to conform precisely to the description of
requirements, but must:
(a)

meet the objectives and performance requirements prescribed in the

description of requirements;

(b)

be substantially within any delivery or completion schedule, budget and other

performance parameters stated in the bidding documents; and

(c)

clearly state the benefits of the alternative bid over any solution which
conforms precisely to the description of requirements, in terms of technical
performance, price, operating costs or any other benefit.

Alternative bids shall be evaluated in the same way as other bids, except that the
technical evaluation shall take into account only the objectives or performance
requirements prescribed in the description of requirements.

Rule 74:
Financial Evaluation and Comparison
(1)
The Evaluation of Bids Committee shall conduct a financial evaluation and
comparison to determine the evaluated price of each bid and determine the lowest
evaluated bid, which is substantially responsive to the requirements of the bidding
documents (rather than simply identifying the bid with the lowest bid price).
(2)

(3)

The evaluated price for each bid shall be determined by:

(a)

taking the bid price, as read out at the bid opening;

(b)

correcting any arithmetic errors, in accordance with the methodology stated

in the bidding documents;

(c)

applying any non-conditional discounts offered in the bid;

(d)

making adjustments for any non-material non-conformity, error or omission

in accordance with Rule 72(1), including inland transport costs, if omitted
from the bid price;

(e)

Evaluation of technical features, such as capacity or output, operating costs,

efficiency (in accordance with evaluation methodology described in the
bidding documents), and life-cycle costs, and application of any additional
evaluation criteria, through an increase or decrease to the bid price, in
accordance with rule 66(2);

(f)

Evaluation of commercial
terms, including payment terms, delivery /
completion period, cost of required spare parts.

(g)

converting all bids to a single currency, using the currency and the source
and date of exchange rate indicated in the bidding document; and

(h)

applying any margin of preference indicated in the bidding document, in

accordance with Rule 76.

The addition or subtraction of all the above costs determined in accordance with the
pre-disclosed criteria will then be applied to the quoted price to arrive at the
evaluated cost of the bids, which are then compared to identify the bid with the
lowest evaluated cost, subject also to the application of a margin of preference for
domestic goods and bidders, if one is applicable.

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(4)

Bids shall be compared by ranking them according to their evaluated cost and
determining the bid with the lowest evaluated price.

(5)

Where the bidding document included more than one lot and permitted bidders to
offer discounts, which were conditional on the award of one or more lots, the
Evaluation of Bids Committee shall conduct a further financial evaluation, to
determine the lowest evaluated combination of bids.

Rule 75:
Application of Discounts
(1)
Bidders shall be permitted to offer discounts to their bids, which shall be included in
the bid and read out at the bid opening.
(2)

Any discount offered after the deadline for submission of bids shall not be taken into
account.

(3)

Any non conditional discounts shall be taken into account in the financial evaluation
and comparison of bids, in accordance with rule (74) (2) (c);

(4)

Bidders may also be permitted to offer discounts, which are conditional on the award
of one or more lots. Conditional discounts shall be taken into account in a further
financial evaluation, in accordance with Rule 74(5).

(5)

Any prompt payment discount included in a bid shall become a term of the contract,
if that bid is accepted, and shall be utilised by the Entity, if payment is made in
accordance with the terms of the discount. However, prompt payment discounts
shall not be considered in the evaluation and comparison of bids, unless such
discount is taken into account through the application of any additional evaluation
criteria, in accordance with Rule 66(2).

Rule 76:
Preference
(1)
Where so indicated in the bidding document, and in accordance with any rules or
schemes for domestic preference issued by the PPU through circulars, the Evaluation
of Bids Committee may apply a margin of preference to eligible bids.
(2)

(3)

Any rules or schemes issued by the PPU through circulars, and the bidding
documents, shall clearly state:
(a)

eligibility for the margin of preference, in terms of ownership, location of

bidder or production facilities, origin of labour, raw material or components,
extent of sub-contracting or association with local partners or any other
relevant factor;

(b)

the documentation required as evidence of eligibility for the margin of

preference; and

(c)

the percentage of the margin of preference and the manner in which it will be
applied during the evaluation.

The percentage of preference in schemes issued by the PPU shall be between five
(5) and ten (10) percent. The PPU may review these percentages annually.

Rule 77:
Detailed evaluation of bids for civil works
(1)
The detailed evaluation of bids for civil works shall be conducted in general along the
lines mentioned above, with particular attention being paid to the aspects specific to
the civil works context, including:
(a)

Consistency of work plans and schedules with the requirements in the bidding
documents, including with respect to aspects such as timing of mobilization
and construction methodology;

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(b)

Examination and analysis of reasonableness and reliability of unit rates

quoted for items listed in the bill of quantities;

(c)

Identification of unbalanced bids, in which unusually high prices are quoted

for items of work to be performed at an early stage in the implementation of
the contract (frontloading), or for items that the bidder believes were
underestimated in the bill of quantities.

(2)

The Entity shall assess whether prices are not so low that the Bidder, if awarded the
contract, would incur substantial financial losses and, therefore, fail to complete the
work satisfactorily, or whether any unrealistically low prices reflect a
misunderstanding of the specifications and scope of works. In such a case the
bidder's explanation including rate analysis shall be sought and if not rational and
satisfactory, the bid may be rejected. In the case of satisfactory explanation, an
additional performance security may be required to protect the Entity against
financial loss in the event of a default by the successful bidder.

(3)

The Entity shall identify unbalanced bids by comparing unit prices quoted by bidders
with the Entitys estimates which are updated and corresponding prices quoted by
other bidders.

(4)

When the Entity determines that a bidder may have quoted relatively high unit prices
for those work elements to be performed early in the contract period so as to
increase the up-front payments, the bid shall not be rejected unless it is extremely
unbalanced; instead, a higher performance security may be required to protect the
Entity against financial loss in the event of a default by the successful bidder. The
evaluation and comparison of bids shall involve calculating the nominal loss that
would be incurred by the Entity by having to make larger than normal early
payments.

Rule 78:
Post-qualification
(1)
Where so indicated in the bidding documents, the Entity may conduct a postqualification of the bidder who submitted the lowest evaluated responsive bid, to
determine whether the bidder is qualified to perform the contract effectively.
(2)

The criteria for qualification shall be as set out in the bidding document and shall be
drafted in accordance with Rule 37.

(3)

Where a bidder is determined not to be qualified, the bid shall be rejected and a
post-qualification conducted on the bidder who submitted the next lowest evaluated
responsive bid.

(4)

Where a pre-qualification has been conducted, the Entity may verify the information
submitted by the bidder who submitted the lowest evaluated responsive bid. Where
the bidder no longer meets the qualification criteria, the bidder shall be rejected and
the qualifications of the next bidder verified.

Rule 79:
Bid Evaluation Reports and Recommendations
(1)
The Evaluation of Bids Committee shall prepare a bid evaluation report. The bid
evaluation report shall be submitted to the Award Authority.
(2)

The bid evaluation report shall include:

(a)

a summary of the bids received and opened;

(b)

the results of the preliminary examination;

(c)

the results of the technical evaluation;

(d)

reasons why bids were declared non responsive;

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(3)

(e)

details of any non material deviations, which were accepted and the way in
which they were quantified and taken into account in the financial evaluation;

(f)

the evaluated price of each bid, showing any corrections or adjustments to

the bid price and any conversion to a common currency;

(g)

the ranking of the bids, according to their total evaluated price;

(h)

a statement of the lowest evaluated substantially responsive bid, for each lot
where applicable;

(i)

a summary of the application of any conditional discounts and the lowest

evaluated combination of bids, where applicable;

(j)

the results of any post-qualification; and

(k)

a recommendation to award the contract or contracts to the lowest evaluated

responsive bid or combination of bids, or other appropriate recommendation,
such as the cancellation of the procurement process.

The bid evaluation report and recommendations shall be approved by the

appropriate Award Authority, prior to proceeding with contract award, in accordance
with Chapter VIII of these Rules, or any other action, such as cancellation of the
procurement process.

CHAPTER V - PROCEDURES FOR REQUEST FOR PROPOSALS

Rule 80:
Use of Request for Proposals Procedures
(1)
Entities shall ensure that they have complied with all relevant requirements of
Chapter II of these Rules, prior to initiating Request for Proposals procedures for
procurement of Consultants Services in accordance with this chapter.
SECTION A Invitation of Expressions of Interest
Rule 81:
Notice inviting Expressions of Interest
(1)
In order to develop a shortlist, procuring entities shall publish a notice seeking
expressions of interest.
(2)

The notice shall be drafted using the standard form issued by the PPU and shall
contain at least(a)

details of the scope of the assignment;

(b)

a statement of the criteria for short-listing, which shall be related to the

consultants experience, qualifications, personnel and any other factor related
to their ability to successfully perform the assignment;

(c)

details of the information to be included in the expression of interest,

including any information or documentation required to verify the consultants
eligibility or qualifications;

(d)

the date, time and address for submission; and

(e)

any special instructions on sealing, marking or submission of expressions of

interest.

(3)

Notices seeking expressions of interest shall be published at least fourteen (14)

working days prior to the deadline for submission.

(4)

Deadline for submission of expressions of interest shall be between fourteen (14) to

sixty (60) working days in case of national procurement and from twenty-one (21) to
ninety (90) working days in case of international procurement.

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(5)

Notices shall be published in accordance with rule 50.

Rule 82:
Evaluation of Expressions of Interest and Development of Shortlists
(1)
Expressions of interest shall be evaluated using the criteria stated in the notice in
order to develop a shortlist of consultants who are expected to be able to meet the
Entitys requirements. A record of the evaluation of expressions of interest shall be
maintained. Where the number of suitable consultants is greater than the number of
consultants to be included on the shortlist, the consultants who best meet the
Entitys requirements shall be included on the shortlist.
(2)

The shortlist shall include sufficient consultants to ensure effective competition.

(3)

Consultants shall not be included unless they are expected to fully satisfy the Entitys
requirements, including those related to eligibility, qualifications, capacity, resources
and experience.

(4)

The Consultants included on the shortlist shall not all have the same ownership.

(5)

The results of the evaluation of the expressions of interest and/or the proposed
shortlist shall be approved by the Award Authority, prior to issue of the Request for
Proposals.

SECTION B Invitation of Proposals

Rule 83:
Contents of Request for Proposals
(1)
The Request for Proposals document shall be drafted using the Standard Request for
Proposals Documents issued by the PPU.
(2)

The Request for Proposals shall include all information necessary to enable
consultants to participate in the procurement proceedings and to submit proposals
that are responsive to the needs of the Entity. In particular, the Request for
Proposals shall include:
(a)

instructions on the conduct of the procurement process, including the

preparation and submission of proposals, conduct of a pre-proposal
conference, if any, which shall follow the principles of Rule 58, the opening
and evaluation of proposals and award of contract;

(b)

information relating to eligibility to participate, including restrictions relating

to conflict of interest;

(c)

a description of the services required, in accordance with Rule 18;

(d)

an explanation of the selection procedure to be applied in evaluating

proposals, in accordance with Rule 84;

(e)

the evaluation criteria to be applied, in accordance with Rule 86;

(f)

the type of contract to be awarded, in accordance with Rule 20;

(g)

the terms and conditions of contract which will apply; and

(h)

information on the Consultants right to appeal under the administrative

review process and on the Governments policy on fraud and corruption,
including the debarment of consultants.

Rule 84:
Choice of Selection Procedure
(1)
The Entity shall select the most appropriate selection procedure to be used to
evaluate proposals and shall state the selection procedure in the Request for
Proposals.
(2)

The selection procedure shall be either;

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(a)

Quality and Cost Based Selection (QCBS), which takes into account both the
quality and the cost of proposals and selects the proposal which offers the
optimum balance of quality and cost;

(b)

Quality Based Selection (QBS), which focuses on quality and selects the
highest quality proposal;

(c)

Fixed Budget Selection (FBS), which selects the highest quality proposal,
which is within the entitys pre-disclosed budget; or

(d)

Least Cost Selection (LCS), which selects the lowest priced proposal, which
meets the entitys technical requirements.

(3)

Subject to sub-rules 84(4), 84(5) and 84(6), Quality and Cost Based Selection shall
normally be used as the selection procedure for consultancy services.

(4)

Quality Based Selection may be used for:

(a)

highly specialised assignments, where it is difficult to define precise terms of

reference and inputs and Consultants are expected to demonstrate innovation
in their proposals; or

(b)

assignments which will have a high downstream impact and the Entity wishes
to contract the best consultant; or

(c)

assignments that can be carried out in substantially different ways and where
the value of the services depends on their quality. By conducting, possibly
with the assistance of an individual consultant, a more detailed analysis prior
to inviting proposals on a quality basis, the Entity may be able to better
define the budget, work method or specific outcome expected from the
assignment to be completed.

(5)

Fixed Budget Selection may be used for assignments, which are simple, can be
precisely defined and where the budget is fixed.

(6)

Least Cost Selection may be used for assignments of a standard or routine nature,
where well-established practices and standards exist.

Rule 85:
Submission of Proposals for Consultancy Services
(1)
The Request for Proposals shall require consultants to submit separately sealed
technical and financial proposals, both sealed in an outer envelope.
(2)

Notwithstanding the provisions of sub-Rule 85(1), where the selection procedure is

Quality Based Selection, the Request for Proposals may require consultants to submit
a technical proposal only, with a financial proposal to be submitted at a later date by
the consultant with the highest technical score only.

(3)

The time period provided for submission of proposals shall be from twenty-one (21)
to ninety (90) working days after the date of issue of the request for proposals
where international consultants are included in the shortlist, or from fourteen (14) to
ninety (90) working days where all consultants are national. In determining the
appropriate time period for submission of proposals for each request, the
Procurement Office shall take into account, in addition to the required minimum
period, the principles provided in Rule 53(5).

Rule 86:
Evaluation Criteria for Consultancy Services
(1)
The Request for Proposals shall state the evaluation criteria to be applied during the
technical evaluation.
(2)

The evaluation criteria shall be designed to assess the ability of Consultants to:

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(a)

perform the assignment, through

methodology or personnel, or

assessment

of

their

experience,

(b)

meet objectives of the assignment, such as the transfer of knowledge or

involvement of national consultants in the assignment.

(3)

Each criterion shall be allocated a maximum number of points and the total for all
criteria shall equal 100. The number of points allocated to each criterion shall be
directly related to its importance to the procurement, except that the points allocated
to experience may be limited, where experience has already been taken into account
in the development of the shortlist.

(4)

The Request for Proposals may also include sub-criteria to provide further guidance
on the allocation of points under each main criterion.

(5)

Where appropriate, a proportion of points may be allocated to the performance of

Consultants, or their key staff, in interviews, provided that the application of such a
criterion, and its weight, are disclosed in the request for proposals.

Rule 87:
Issue of Request for Proposals
(1)
The Request for Proposals document shall be approved by the Award Authority, prior
to its issue.
(2)

The Request for Proposals shall be issued to all shortlisted consultants at the same
time and a record of the issue of the documents shall be maintained.

Rule 88:
Clarification and Amendment of Request for Proposals
(1)
The Request for Proposals shall state that a Consultant may seek clarification of the
Request for Proposals: such clarification may be sought at least fourteen (14)
working days prior to the deadline for the submission of proposals.
(2)

Where a request for clarification is received, the Procurement Office shall provide a
clarification in writing within seven (7) working days after receipt of the request. The
clarification shall be copied to all consultants and shall include a description of the
inquiry, but without identifying the source of the request.

(3)

At any time prior to the deadline for submission of proposals, the Entity may, either
at its own initiative or in response to a request for clarification from a Consultant,
amend the Request for Proposals by issuing an addendum.

(4)

Any addendum shall be issued in writing and the same information shall be provided
to all Consultants at the same time. All addenda shall be numbered sequentially.

(5)

All clarifications and addenda to the Request for Proposals shall be binding on
consultants.

Rule 89:
Extension of Proposal Submission Period
(1)
To give Consultants reasonable time in which to take a clarification or addendum into
account in preparing their proposals, the Entity, may, at its discretion, extend the
deadline for the submission of proposals, through the issue of an addendum in
accordance with Rule 88.
SECTION C Receipt and Opening of Proposals
Rule 90:
Receipt of Proposals
(1)
The Procurement Office shall make arrangements for the receipt and safe-keeping of
proposals until the deadline for submission of proposals, which may include:

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(a)

the use of a proposal box, in which consultants are responsible for depositing
their proposals directly and which shall remain locked until the time for
proposal opening; or

(b)

(2)

the receipt of proposals by staff of the Procurement Office, who shall be

responsible for issuing signed receipts, showing the precise date and time of
receipt and keeping proposals in a secure location until the time for proposal
opening.
Where any proposal is too large for the proposal box, the Procurement Office shall
receive and keep the proposal in accordance with sub-Rule 90(1)(b).

(3)

Where the Procurement Office is receiving proposals and issuing receipts, it shall
maintain a record of all proposals received, indicating the name of each consultant,
the date and time of receipt and the name of the person responsible for receipt.

(4)

Proposals may only be received electronically, or by any means which do not permit
sealed proposals, where authorised by the PPU through circulars.

(5)

The Entity shall not be held liable for the loss or delay in delivery of any proposal
delivered by mail or courier.

(6)

The Procurement Office shall ensure that appropriate staff are available at the
location for submission of proposals or that consultants have access to the proposal
box, for a reasonable period of time prior to the deadline.

(7)

The Entity shall not disclose the number or identity of proposals received, prior to
the proposal opening, other than to public officials who require the information as
part of their official duties.

Rule 91:
Deadline for Submission of Proposals
(1)
The Procurement Office shall ensure that proposal submission is closed at the precise
time and date of the submission deadline and shall ensure that no further proposals
are received or that the proposal box is sealed.
(2)

Any proposal received after the deadline shall not be accepted, but shall be declared
late, labelled as such and returned to the consultant unopened.

(3)

Following the deadline for submission of proposals, the Procurement Office shall
ensure that all proposals are kept securely and taken immediately to the location for
the proposal opening.

Rule 92:
Opening of Technical Proposals
(1)
The Procurement Committee shall open the technical proposals immediately after the
deadline for submission of proposals.
Rule 93:
Record of Opening
(1)
The Procurement Office shall maintain a record of the proposal opening, which shall
form part of the procurement record.
SECTION D Technical Evaluation of Proposals
Rule 94:
Evaluation Committees
(1)
The Award Authority shall establish an Evaluation Committee to conduct the
evaluation of proposals.
(2)

The Evaluation Committee shall have a minimum of three members, with appropriate
skills and experience for the type, value and complexity of the procurement
requirement.

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(3)

The Evaluation Committee shall prepare an Evaluation Report, with

recommendations, for submission to the appropriate Award Authority for approval.

Rule 95:
Preliminary Examination
(1)
The Evaluation Committee shall conduct a preliminary examination to determine
whether proposals are complete and responsive to the basic instructions and
requirements of the Request for Proposals. The preliminary examination shall
determine whether:
(a)

the proposal has been submitted in the correct format;

(b)

the proposal has been submitted without material reservations or deviations

from the terms and conditions of the Request for Proposals;

(c)

the proposal has been correctly signed and authorised;

(d)

the correct number of copies of the proposal have been submitted;

(e)

a separately sealed financial proposal has been submitted, if required;

(f)

the proposal is valid for at least the period required;

(g)

curriculum vitae have been correctly signed, if required;

(h)

all key documents and information have been submitted; and

(i)

the proposal meets any other key requirements of the Request for Proposals.

(2)

Any material deviations shall result in rejection of the proposal and such proposals
shall not be subject to technical evaluation.

(3)

The preliminary examination shall also determine whether Consultants are eligible
and qualified, where this has not been determined prior to inviting proposals.

Rule 96:
Evaluation and selection
(1)
Any award by the Entity shall be made to the consultant whose proposal best meets
the needs of the Entity as determined in accordance with the criteria and
methodology for evaluating the proposals and final selection procedures set forth in
the request for proposals.
(2)

The evaluation of the proposals shall be carried out in two stages: first the quality,
and then the cost. Evaluators of technical proposals shall not have access to the
financial proposals until the technical evaluation, including any other reviews and
approval, is concluded. Financial proposals shall be opened only thereafter.

(3)

The criteria for assessment of the technical proposals may include:

(a)

the consultants relevant experience for the assignment,

(b)

the quality of the methodology proposed,

(c)

the qualifications of the key staff proposed,

(d)

transfer of knowledge, if required in the Terms of Reference, and

(e)

the extent of participation by nationals among key staff in the performance of

the assignment, in the case of international competition.

(4)

Each of the criteria shall be assigned a weight, in accordance with the applicable
instructions and manuals. The general criteria shall normally be divided into three
sub-criteria which should be limited to what is essential to conduct the evaluation.

(5)

A record of the evaluation of each proposal and the comparison between them shall
be maintained by the Entity, and shall be reflected in an overall evaluation report.

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Rule 97:
Scoring of Proposals for Technical Evaluation
(1)
Each member of the Evaluation Committee shall independently conduct a technical
evaluation of each proposal, awarding scores against each criterion. These scores
shall be recorded and the score sheets signed by the evaluators.
(2)

Scores from each member of the Evaluation Committee shall be compiled and an
average score calculated for each proposal.

(3)

The Evaluation Committee shall consider any significant deviations from the average
score or inconsistencies in scoring and evaluators may be required to justify the
scores awarded. Where an evaluator has misunderstood a proposal or the criteria or
has evaluated proposals in an inconsistent manner, the evaluator may be permitted
to adjust his scores, but no evaluator shall be obliged to make adjustments to his
scores or to adjust scores without justification. Where any score is adjusted, the
original score sheet shall be kept as part of the record of the evaluation, the adjusted
scores recorded on a new score sheet and the reasons for making adjustments shall
be recorded.

(4)

The average score for each proposal shall be its total technical score for evaluation
purposes.

Rule 98:
Technical evaluation report and retention of evaluation records
(1)
The Evaluation Committee shall prepare a Technical Evaluation Report, which shall
include:
(a)

minutes of the opening of technical proposals;

(b)

the results of the preliminary examination, with reasons why any proposals
were rejected;

(c)

the technical scores awarded by each evaluator for each proposal;

(d)

a summary of the relative strengths and weaknesses of each proposal;

(e)

an analysis of any significant discrepancies or inconsistencies in scoring and

an explanation of any adjustments made to scores;

(f)

the total technical score for each proposal;

(g)

a list of the proposals which reached the minimum technical qualifying mark
and a recommendation to open the financial proposals of these consultants;

(h)

a recommendation to reject all proposals which did not reach the minimum
technical qualifying mark; and

(i)

in the case of Quality-Based-Selection, the ranking of technical proposals, and

a recommendation to open the financial proposal of the consultant that
submitted the highest ranked technical proposal.

(2)

The Technical Evaluation Report shall be submitted to the appropriate authority for
approval, prior to proceeding with the opening and evaluation of financial proposals
or the rejection of any proposals. The Technical Evaluation Report shall be included
in the overall evaluation report referred to in Rule 96(5).

(3)

All records relating to the evaluation, such as individual mark sheets, shall be
retained until completion of the project and its audit, subject to the requirements of
Article 66(4) of the Law and Rule 157.

Rule 99:
Notification of Results of Technical Evaluation
(1)
Following approval of the Technical Evaluation Report by the Award authority, the
Procurement Office shall notify the consultant or consultants, whose proposals are

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proceeding to the financial evaluation, of the date and time set for the opening of
financial proposals. The opening date shall not be sooner than (fourteen) 14
working days after the notification date where international consultants are included,
or (seven) 7 working days where all consultants are national.
(2)

The financial proposal of all consultants whose technical proposal obtained pass
marks shall be publicly opened and evaluated. The successful consultant shall then
be selected using the selected method and then invited for negotiations.

(3)

When using the Quality Based Selection method, the financial proposal of the
Consultant whose technical proposal scored the highest marks alone shall be
opened, evaluated and that Consultant invited for negotiation.

(4)

Notwithstanding the provisions of sub-rule 99(3), in the case of Quality Based

Selection where only technical proposals have been submitted, the Procurement
Office shall notify the consultant who achieved the highest technical score,
requesting the submission of a financial proposal.

(5)

At the same time, the Entity shall notify those Consultants whose proposals were
unsuccessful, indicating that their technical proposals are rejected and that their
financial proposals will be returned unopened after completion of the selection
process.

SECTION E Financial Evaluation of Proposals

Rule 100:
Financial Opening
(1)
The Procurement Committee shall open the recommended financial proposal or
proposals at the time, date and location notified to Consultants. Consultants
representatives shall be permitted to attend and witness the opening.
(2)

(Key pages of the financial proposals shall be initialled by the chairman of the
Procurement Committee and the following information read out and recorded:
(a)

the name of the Consultant;

(b)

the Consultants total technical score; and

(c)

the total proposal price.

(3)

The opened financial proposals shall be taken immediately to a secure location,

where they shall be kept until the financial evaluation begins.

(4)

The Procurement Office shall maintain a record of the financial proposal opening,
which shall form part of the procurement record.

(5)

The minutes of the session shall be signed by all those present, if feasible, but at a
minimum by all members of the Procurement Committee, and made available upon
request to any Consultant that submitted a proposal. The absence of any
Consultants signature shall not invalidate the record.

Rule 101:
Financial Evaluation for Quality and Cost Based Selection Methods
(1)
The Evaluation Committee shall determine the evaluated price of each proposal by:
(a)

correcting any arithmetic errors;

(b)

determining whether financial proposals are complete and have cost all
corresponding inputs in the technical proposal, costing any missing items and
adding them to the proposal price; and

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(c)

converting all proposals to a single currency for purposes of evaluation, using

the currency, source and date of exchange rates indicated in the Request for
Proposals.

(2)

The lowest priced proposal shall be given a financial score of one hundred 100 and
other proposals shall be given a financial score which is inversely proportional to the
lowest evaluated price, using the methodology stated in the Request for Proposals.

(3)

The technical and financial scores of each proposal shall be weighted, using the
weights stated in the Request for Proposals.

(4)

The weighted technical and financial scores shall be added together, to give a total
score for each proposal.

(5)

The proposal with the highest total score, in accordance with the criteria and their
weight as disclosed in the request for proposals, shall be recommended for award of
contract, subject to any negotiations required.

(6)

Alternatively, if so disclosed in the request for proposals, the successful proposal may
be determined using the fixed budget selection method (i.e., selection of the
consultant with the highest technical score whose financial proposal is within the
disclosed budget ceiling), or the least cost method (i.e., selection of the consultant
whose financial proposals is the lowest among those consultants whose technical
proposals attained the required minimum technical score).

Rule 102:
Financial Evaluation for Quality Based Selection
(1)
The Evaluation Committee shall correct any arithmetic errors and determine whether
the financial proposal is complete and has cost all corresponding inputs in the
technical proposal. The Evaluation Committee shall also analyse the financial
proposal to determine whether it offers value for money and to prepare for
negotiations.
(2)

The proposal shall be recommended for award of contract, subject to any

negotiations required.

Rule 103:
Financial evaluation report
(1)
The Evaluation Committee shall prepare a Financial Evaluation Report, which shall
include:
(a)

minutes of the opening of financial proposals, including the technical scores

and proposal prices read out;

(b)

the evaluated price of each proposal, following any corrections, adjustments

and the conversion to a single currency;

(c)

the financial score of each proposal and the methodology used for allocating
financial scores (in the case of quality-and-cost-based selection methods); or
the ranking of each proposal by price (in the case of least-cost selection);

(d)

the weighting of the technical and financial scores (in the case of quality-andcost-based selection methods);

(e)

the total score for each proposal (in the case of quality-and-cost-based
selection methods);

(f)

a recommendation to award the contract to the consultant obtaining the

highest total score (in the case of quality-and-cost-based selection methods),
or the highest ranked consultant in accordance with another applicable
selection method, subject to any negotiations required; and

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(g)
(2)

the currency and price of the proposed contract, subject to any changes
following negotiations.

The Financial Evaluation Report shall be submitted to the Award Authority for
approval, prior to proceeding with any negotiations required or award of contract.

Rule 104:
Scope of Negotiations
(1)
Negotiations with the selected consultant may relate to:

(2)

(a)

minor alterations to the terms of reference, methodology and staffing;

(b)

minor amendments to the Special Conditions of Contract;

(c)

mobilization arrangements, the work plan and completion schedule;

(d)

inputs required from the Entity; or

(e)

clarification of the consultants tax liability (if any).

Negotiations shall not be conducted to:

(a)

substantially change the technical quality or details of the proposal, including

the tasks or responsibilities of the Consultant;

(b)

materially alter the terms and conditions of contract;

(c)

reduce fee rates or reimbursable costs, except where changes are required to
reflect any agreed changes to the technical proposal; or

(d)

substantially alter anything which was a deciding factor in the evaluation of

proposals.

(3)

Notwithstanding the provisions of sub-Rule 104(2), where the evaluation was

conducted using Quality Based Selection, negotiations may relate to the total
proposal price and its constituent costs, to obtain value for money.

(4)

The selected Consultant should not be allowed to substitute key staff, unless both
parties agree that undue delay in the selection process makes such substitution
unavoidable or that such changes are critical to meet the objectives of the
assignment. If this is not the case and if it is established that key staff were offered
in the proposal without confirming their availability, the Consultant may be
disqualified and the process continued with the next ranked Consultant. The key staff
proposed for substitution shall have qualifications equal to or better than the key
staff initially proposed.

(5)

If the negotiations fail to result in an acceptable contract, the Entity shall proceed to
the next ranked consultant and so on.

Rule 105:
Procedure for Negotiations
(1)
Negotiations shall not be conducted until after the Financial Evaluation Report has
been approved by the relevant authority.
(2)

Negotiations shall only be held with the Consultant recommended for contract award,
except where negotiations fail, and the Procurement Office obtains the approval of
the Award Authority to open negotiations with the next ranked Consultant.

(3)

The Procurement Office shall prepare a plan for the negotiations, which shall specify
the issues to be negotiated and objectives to be achieved and shall, to the extent
possible, quantify the objectives and set maximum and minimum negotiation
parameters.

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(4)

The negotiations shall be conducted by a minimum of two staff of the Entity, who
shall not commit the Entity to any proposed arrangements or agreements, but shall
seek the approval of the Award authority, prior to confirming any agreement
reached.

(5)

Staff conducting the negotiations shall prepare minutes of the negotiations, which
shall form part of the record of the procurement and shall obtain the Consultants
written agreement that they are a true and accurate record of the negotiations held.

Rule 106:
Procedure for award
(1)
Subject to successful negotiation, the contract shall be awarded to the successful
consultant. If the negotiation is not successful in arriving at a contract satisfactory to
both parties, the negotiation shall be terminated and the next highest ranked
Consultant invited for negotiation.
(2)

A contract shall not be awarded in violation of the conflict-of-interest provisions in

Rule 165.

SECTION F Individual Consultants

Rule 107:
Selection of Individual Consultants
(1)
Individual consultants may be employed on assignments for which the experience
and qualifications of the individual are the paramount requirement and teams of
personnel are not required.
Rule 108:
Procedure for Selection of Individual Consultants
(1)
Notwithstanding the procedures prescribed in this Chapter V for Request for
Proposals procedures for procurement of consultants services, the selection of
individual consultants shall be conducted in accordance with provisions of this Rule
108 and other applicable provisions of this Chapter V.
(2)

The Entity shall prefer to publish a notice seeking expressions of interest to develop
a shortlist, in accordance with applicable provisions of Rule 81. However, in
circumstances such as assignments of small duration and value for which the time
and process of considering a large number of applications may be disproportionate
to the nature of the assignment, the Entity may waive the requirement of publication
of notice.

(3)

The consultants may not be required to submit proposals and individual consultants
shall be selected on the basis of their qualifications for the assignment.

(4)

Consultants shall be selected through comparison of qualifications of shortlisted

candidates among those who have expressed interest in the assignment or who have
been maintained in the standing list by the Entity or who in the knowledge of the
Entity are suitable for carrying out the assignment.

(5)

Individuals considered for comparison of qualifications shall meet the minimum

relevant qualifications and the best qualified candidate who is fully capable of
carrying out the assignment, shall be selected for the assignment. Capability shall be
judged on the basis of academic background, experience, and, as appropriate,
knowledge of the local conditions, such as local language, culture, administrative
system, and government organization. Wherever possible, the Entity shall conduct an
interview to judge the suitability and ascertain the availability of the consultant.

(6)

Individual consultants may be selected on a sole-source basis with due justification,

in accordance with applicable provisions of Chapter VII of these Rules, in exceptional
cases such as:

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(a)

tasks that are a continuation of previous work that the consultant has carried
out and for which the consultant was selected competitively;

(b)

assignments with total expected duration of less than three months;

(c)

emergency situations resulting from natural disasters; and

(d)

when the individual is the only consultant qualified for the assignment.

CHAPTER VI PROCEDURES FOR REQUEST FOR QUOTATIONS

Rule 109:
Use of Request for Quotations Procedures
(1)
Procuring entities shall ensure that they have complied with all relevant requirements
of Chapter II, prior to initiating Request for Quotations procedures for procurement
of Goods, Works and Non-Consultancy Services in accordance with this chapter.
Rule 110:
Contents of Request for Quotations Document
(1)
The Procurement Office shall prepare a written Request for Quotations document,
using the appropriate standard document issued by the PPU.
(2)

The Request for Quotations Document shall include all information necessary to
enable venodors to participate in the procurement proceedings and to submit
quotations that are responsive to the needs of the Entity. In particular, the Request
for Quotations shall include:
(a)

instructions on the conduct of the procurement process, including the

preparation and submission of quotations and information on the evaluation
of quotations and award of contract;

(b)

instructions on any documents required with the quotation, which shall

include at least a certified copy of the vendors business registration;

(c)

a description of the goods, works or services required, in accordance with

rule 15, 17 or 18 as appropriate;

(d)

information on the methodology and criteria for the evaluation of quotations;

(e)

the form and type of contract to be awarded, which shall normally be a

purchase order for a lump sum contract;

(f)

the terms and conditions of contract which will apply; and

(g)

information on the vendors right to appeal under the administrative review

process and on the Governments policy on fraud and corruption, including
the debarment of bidders.

Rule 111:
Invitation of Quotations and Development of Shortlist
(1)
Written quotations shall be requested from a shortlist of vendors.
(2)

The shortlist shall include sufficient vendors to ensure effective competition, at least
three bidders should be invited to participate.

(3)

Notwithstanding the provisions of sub-Rule 111(2), in exceptional circumstances a

shortlist may consist of only two vendors, where only two suitable potential sources
exist.

(4)

In developing a shortlist, the Procurement Office may use:

(a)

standing lists maintained in accordance with rule 39;

(b)

lists of pre-qualified bidders;

(c)

its own knowledge of the market;

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(d)
(5)

(6)

any other appropriate sources of information.

In developing a shortlist, the Procurement Office shall comply with the following
rules:
(a)

a fair and equal opportunity shall be afforded to all vendors and there shall
be a rotation of different vendors on successive shortlists;

(b)

the shortlist shall not include any vendors who are not expected to fully
satisfy any eligibility and qualification requirements;

(c)

the shortlist shall not include vendors with the same ownership.

The Procurement Office shall record the names of the vendors included on the
shortlist and the reasons for their inclusion. The shortlist shall be kept as part of the
procurement record.

Rule 112:
Submission and Receipt of Quotations
(1)
The Entity shall require vendors to submit written quotations by:
(a)

postal or courier service;

(b)

facsimile;

(c)

electronic mail; or

(d)

any other form which leaves a record of the quotation.

(2)

The Request for Quotations document shall specify the location, date and time for
submission of quotations and any quotation received after the deadline for
submission shall be rejected.

(3)

All quotations shall be kept securely until after the deadline for submission of
quotations. Where quotations are received in an unsealed form, prior to the
submission deadline, the contents of the quotation shall be kept confidential and
shall not be revealed to any person, other than the officer responsible for receiving
the quotation.

Rule 113:
Evaluation of Quotations
(1)
The Entity shall appoint an Evaluation Committee or designate the person or persons
responsible for the evaluation in accordance with Rule 65.
(2)

(3)
(4)

The evaluation of quotations shall be conducted in accordance with the rules and
procedures in Chapter IV, Section C, except that:
(a)

alternative quotations shall not be permitted; and

(b)

the determination of the evaluated price of quotations shall not include the
application of any additional evaluation criteria as prescribed in Rule 66(2)
and 74(2)(e).

The quotation with the lowest evaluated cost, which is substantially responsive to the
requirements of the Entity, shall be recommended for award of contract.
The successful vendors acceptance of the purchase order shall constitute the
procurement contract.
CHAPTER VII PROCEDURES FOR SINGLE-SOURCE PROCUREMENT

Rule 114:
(1)

Use of Single Source Procurement Procedures

Procuring entities shall ensure that they have complied with all relevant requirements
of Chapter II, prior to initiating Single Source Procurement procedures for

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procurement of Goods, Works and Services both Consultants Services and NonConsultancy Services in accordance with this chapter.
SECTION A Single-Source Procurement for Low Value Requirements
Rule 115:
Procedure for Low Value Procurement
(1)
Where the Entity conducts single-source procurement on the grounds of low value,
in accordance with rule 29(1)(a), the procedure shall be as follows:
(a)

the Procurement Office shall first confirm that the goods, works or services
required are not available from stores or under any existing framework
contract or similar arrangement;

(b)

the Procurement Office shall identify a suitable vendor;

(c)

the Procurement Office shall request a quotation, which may be either written
or oral, from the identified vendor, based on the description included in the
procurement requisition;

(d)

(2)

if the Procurement Office is satisfied that the quotation meets its needs and
offers value for money, it shall award a contract and issue a written purchase
order or similar document, provided that funds have been committed for the
procurement.
The Entity shall, as far as possible, aggregate the Low value requirements to have
more competitive procurement, instead of having the option to single source each of
them.

SECTION B Single-Source from a Sole Suitable Potential Contractor

Rule 116:
Procedure for Procurement from a Sole Potential Contractor
(1)
Where the Entity conducts single-source procurement on the grounds that only one
potential contractor is able to meet the Entitys needs, in accordance with rule
29(1)(b), the Procurement Office shall:
(a)

prepare a written request for a quotation, containing a description of the

goods, works or services required in accordance with Rules 15, 17 or 18 as
appropriate and a statement of the proposed contract form and terms and
conditions of contract;

(b)

issue the written request to the sole potential vendor and obtain a written
quotation;

(c)

evaluate the quotation in accordance with rule 119;

(d)

negotiate with the vendor, if required, in accordance with the procedure in

Rule 120;

(e)

prepare a report for submission to the Award Authority, which shall contain(i)

a summary of the evaluation of the quotation;

(ii)

a record of any negotiations held; and

(iii)

a recommendation to award the contract or to take other appropriate

action.

SECTION C Single-Source for Emergency Needs

Rule 117:
Procedures for Emergency Procurement
(2)
Where the Entity conducts single-source procurement on the grounds of an
emergency need, in accordance with Rule 29(1)(c), the Procurement Office shall:

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(a)

Be first satisfied that the emergency needs is not created by any action or
failure of the Entity itself;

(b)

identify a suitable vendor;

(c)

where time permits, prepare a written request for a quotation, containing a

description of the goods, works or services required in accordance with Rules
15, 17 or 18 as appropriate and a statement of the proposed contract form
and terms and conditions of contract;

(d)

issue a written or verbal request to the sole vendor and obtain a written
quotation;

(e)

evaluate the quotation in accordance with Rule 119;

(f)

negotiate with the vendor, if required, in accordance with the procedure in

Rule 120; and

(g)

prepare a brief report for submission to the Award Authority, which shall
contain:
(i)

details of the requirement and the emergency circumstances;

(ii)

a summary of the action taken to invite, evaluate and negotiate the

quotation; and

(iii)

a recommendation to award the contract or take other appropriate

action.

Rule 118:
Approval Arrangements for Emergency Procurement
(1)
The Procurement Committee shall notify the Award Authority, as soon as it identifies
a procurement requirement which will be subject to single-source procurement on
the grounds of an emergency need.
(a)

In order to ensure that emergency procurement proceeds promptly, any

approvals, other than approval to award a contract, may be given by the
chairperson of the Procurement Committee, or any other member designated
by the chairperson, unless alternative arrangements are agreed by the Award
Authority.

(b)

The Award Authority shall be required to promptly consider any emergency

contract award recommendation unless award authority has delegated
powers as per Article 91(2) of the Law.

SECTION D Quotation Evaluation and Negotiation Procedures

Rule 119:
Quotation Evaluation for Single Source and Emergency Cases
(1)
The evaluation of the sole quotation shall be conducted to determine whether the
quotation:
(a)

meets the Entitys technical needs, as defined by the description of goods,

works or services;

(b)

accepts the contractual terms and conditions proposed by the Entity or offers
other terms and conditions which are acceptable to the Entity; and

(c)

offers value for money, based on costs previously spent for similar goods,
works or services or a breakdown analysis of the costs of each component,
taking into account the circumstances and value of the procurement, and, if
applicable as in the case of emergency procurement, any additional costs
involved in meeting the Entitys delivery or completion schedule.

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(2)

Based on the evaluation, the Award Authority shall determine whether negotiations
are required with the vendor.

Rule 120:
Procedure for Negotiations
(1)
The Procurement Committee shall prepare a plan for the negotiations, which shall
specify the issues to be negotiated and objectives to be achieved and shall, to the
extent possible, quantify the objectives and set maximum and minimum negotiation
parameters.
(2)

The negotiations shall be conducted by a minimum of two staff of the Entity, who
shall not commit the Entity to any proposed arrangements or agreements, but shall
seek the approval of the relevant Award Authority, prior to confirming any
agreement reached.

(3)

Staff conducting the negotiations shall prepare minutes of the negotiations, which
shall form part of the record of the procurement.
CHAPTER VIII CONTRACT AWARD

SECTION A Contract Award

Rule 121:
Contract Award Decisions
(1)
All contract award decisions shall be taken by the appropriate Award Authority, in
accordance with the levels of authority specified in Article 91 of the Law.
(2)

The appropriate Award Authority shall be determined by the actual value of the
recommended contract and not the estimated value prepared during the
procurement planning process.

(3)

All contract award decisions shall be taken in response to a recommendation for

contract award, contained in an evaluation report, unless otherwise permitted by
these Rules.

(4)

Where a contract award decision is above the authority of the Minister, the
recommendation shall first be submitted to the Minister for confirmation of the
contract award recommendation and then the Minister shall submit the confirmed
contract award recommendation to the Special Procurement Commission.

(5)

A contract award decision by the Award Authority does not constitute a contract, but
only a decision as to the winning or recommended bidder. Contract awards shall be
made in accordance with Rule 124, 126 or 127, as appropriate.

(6)

The Procurement Committee shall also obtain any other required approvals.

Rule 122:
Commitment of Funds
(1)
Following the contract award decision by the Award Authority, the Entity shall
commit the required funds, before proceeding to award the contract.
(2)

Where the contract is a multiyear contract, the Entity shall obtain approval from the
Ministry of Finance, prior to awarding the contract.

(3)

Where required, the Entity shall also commit the funds for other costs linked to the
contract, as described in Rule 14(1).

Rule 123:
(1)

Notice of Proposed Award under Tendering and Request for

Proposals Methods
Where procurement is conducted using open or restricted tendering or the request
for proposals method, following the contract award decision by the Award Authority,
the Entity shall publish a notice of the proposed award.

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(2)

Notwithstanding the provisions of sub-Rule 123(1), where the Entity uses restricted
tendering in accordance with Rule 48(1)(d), the requirement for publication of a
notice of proposed award shall not apply.

(3)

The notice shall specify:

(a)

the name and address of the bidder recommended for contract award;

(b)

the proposed contract price; and

(c)

that bidders have the right to submit an application for review of the decision
in accordance with Article 71 of the Law.

(4)

The notice shall clearly state that it does not constitute the award of a contract.

(5)

The notice shall be published in accordance with the guidelines issued by PPU in this
regard.

(6)

The notice shall also be sent directly to all bidders or consultants.

(7)

The Entity shall not award the contract until two weeks have elapsed after issue of
notice of proposed award to all bidders or consultants.

Rule 124:
(1)

(2)

Contract Award under Tendering and Request for Proposals

Methods
Following the commitment of funds and fulfilment of provisions of notice of proposed
award in accordance with Rule 123, and provided that no suspension of the
proceedings is applicable pursuant to a decision of the Administrative
Review Committee or a jurisdiction, the Entity shall award the contract by issuing a
notice of bid proposal acceptance to the recommended bidder or consultant.
The notice of bid or proposal acceptance shall state:
(a)

the name and address of the Entity;

(b)

the name and address of the bidder or consultant;

(c)

the date and reference number of the bid or proposal being accepted;

(d)

any modifications to the bid or proposal, resulting from clarifications,

corrections or negotiations;

(e)

any items excluded from the contract or variations in quantity or any other
detail;

(f)

the total contract price;

(g)

to the extent applicable, the time period and procedure for signature of the
contract and provision of a performance security; and

(h)

that the notice of bid or proposal acceptance constitutes a contract between

the Entity and the bidder or consultant, until such time as a formal contract is
signed and a performance security, if applicable, is furnished and any other
action as required by the solicitation documents is completed.

(3)

The Procurement Office shall obtain a signed acknowledgement from the bidder, or
consultant, confirming that it has received the notice of bid or proposal acceptance.

(4)

If the recommended bidder or consultant fails to conclude a contract, or provide a

performance security or any other action required by the solicitation documents, the
Entity shall annul the contract award and award a contract to the next ranked bidder,
or consultant, subject to the bidder or consultant being qualified and the approval of
the Award Authority.

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Rule 125:
(1)

Contract Preparation and Signature under Tendering and Request

for Proposals Methods
Following the issue of the notice of bid or proposal acceptance in accordance with
rule 124, the Procurement Office shall prepare a written contract, using the contract
included in the solicitation documents.

(2)

The Procurement Office shall obtain the Award Authoritys approval of the contract
document, before sending it to the successful bidder of consultant for signature.

(3)

The Procurement Office shall ensure that the successful bidder or consultant signs
and returns a copy of the contract.

(4)

The process has to be completed during the bid Security Validity period, as
applicable.

Rule 126:

Contract Award in Request for Quotations

(1)

Where procurement is conducted using the request for quotations method, following
the contract award decision adopted by the Award Authority and the commitment of
funds, the Procurement Office shall prepare a written purchase order and send it to
the recommended vendor.

(2)

The purchase order shall not contain any terms, conditions or requirements which
differ from the vendors quotation, unless these have been agreed in writing with the
vendor.

(3)

The successful vendors written acceptance of the purchase order shall constitute a
contract between the Entity and the vendor.

(4)

The Entity shall require the vendor to provide a written confirmation that it has
received the purchase order and is proceeding with performance of the contract.

Rule 127:
Contract Award in Single Source Procurement
(1)
Where the Entity conducts single-source procurement on the grounds of low value,
in accordance with Rule 29(1)(a), it shall award the contract in accordance with Rule
115(1)(d).
(2)

Where the Entity conducts single-source procurement on any other grounds,

following the contract award decision adopted by the Award Authority and the
commitment of funds, the Procurement Office shall prepare a written contract or
purchase order that shall constitute the contract and send it to the recommended
vendor. The Entity may, where appropriate, send a notice of quotation acceptance to
the vendor, prior to sending the contract document, in accordance with Rule 124(2).

(3)

The Procurement Office shall obtain a signed acknowledgement from the bidder,
confirming that it has received the notice of quotation acceptance, contract or
purchase order and that it is proceeding with performance of the contract, but any
failure by the contractor to provide such confirmation shall not invalidate the
contract.

Rule 128:
Performance Securities
(1)
A Entity may request a performance security, to secure the contractors obligation to
fulfil the contract. The bidding documents and contract shall state any requirement
for a performance security. A performance security may cover warranty obligations,
if so stated in the contract.
(2)

The value of any required performance security may be expressed either as a fixed
amount or as a percentage of the contract value. The amount shall be between five
(5) and ten percent (10) of the contract value.

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(3)

In determining the amount of performance security required, the Procurement Office

shall take into account the cost to the contractor of obtaining a performance
security, the value of the contract, the risk of a contractor failing to fulfil his
contractual obligations and the extent of protection offered to the Entity through
alternative means, such as payment retentions.

(4)

Where appropriate, the value of the performance security may be progressively

reduced, in line with the contractors progress in delivering or completing the goods,
works or services to which the security relates.

(5)

The bidding documents and contract shall state that the performance security must
be:
(a)

in accordance with the format and wording provided in the bidding

document;

(b)

in a form acceptable to the Entity, which may be:

(i)

cash;

(ii)

a bank guarantee;

(iii)

an equivalent instrument, such as a stand-by letter of credit;

(iv)

property pledge by the bidder; or

(v)

any alternative form acceptable to the Entity, including any forms

permitted under schemes issued by the PPU to facilitate access to
securities by small enterprises;

(c)

from an institution acceptable to the Entity, where the security is issued by a

financial institution; and

(d)

valid for the period prescribed in the contract, which shall normally be twenty
eight (28) days beyond the anticipated completion date of the contract.

(6)

Notwithstanding the provisions of sub-Rule 128(5), the bidding document and

contract may permit alternative security arrangements, in accordance with the
provisions of Article 45 of the Law.

(7)

The conditions for forfeiture of the performance security shall be specified in the
contract.

(8)

The Procurement Office shall release the performance security promptly to the
contractor upon completion of all the contractors contractual obligations which are
subject to the security or termination of the contract for a reason that is not
attributable to any fault of the contractor.

(9)

The Procurement Office shall manage performance securities in accordance with Rule
160.

Rule 129:
Rejection of Bids and Debriefing Unsuccessful Bidders
(1)
Upon the entry into force of the contract and, the provision by the contractor of any
required performance security, the Procurement Office shall promptly reject the bids
of unsuccessful bidders.
(2)

When rejecting unsuccessful bids, the Procurement Office shall return any bid
securities and any unopened financial proposals.

(3)

The Procurement Office shall, where so requested by unsuccessful bidders, provide

unsuccessful bidders with a debriefing as to the reasons for the failure of its
application to pre-qualify or bid.

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(4)

The debriefing shall be provided in writing, within a reasonable period of time of the
receipt of the request.

(5)

The debriefing shall state at which stage of the evaluation the bid was rejected,
provide brief details of any material deviation, reservation or omission leading to
rejection of the bid or state that a bid was substantially responsive, but failed to offer
the lowest evaluated price or highest score, as required.

(6)

The debriefing shall not provide details on any other bids, other than information
that is publicly available from bid openings or published notices.

Rule 130:
Public Notice of Contract Awards
(1)
In accordance with the provisions of Article 63 of the Law, the Entity shall publish a
notice of contract award for all contracts..
(2)

The notice of contract award shall indicate the name and address of the contractor, a
brief description of the goods, works or services procured and the contract price.

(3)

The notice shall be published in accordance with the guidelines issued by PPU in this
regard.

Rule 131:
Registration of Contracts
(1)
Entities shall register details of all contracts with the Ministry of Finance in order to
facilitate disbursement planning.
(2)

(3)

The Ministry of Finance shall maintain a Central Contract Registry, recording the
following details for all contracts(a)

reference number of the contract;

(b)

date of award of contract;

(c)

name of contractor;

(d)

contract value and currency; and

(e)

anticipated dates of payments and contract completion.

The information contained in the Central Contract Registry shall be made available to
the PPU, to facilitate the monitoring of procurement activity.

SECTION B Types of Contract

Rule 132:
Types of Contract and Pricing Approaches
(1)
An Entity may use any of the contract types and pricing approaches included in this
Section, in accordance with the provisions of this Section or any other contract types
authorised by the PPU.
(2)
(3)

Entities shall use the contract forms included in the standard bidding documents
(SBDs) issued by the PPU, except where no contract forms have been included in the
SBDs issued by PPU.
Entities should preferably select a contract type that minimizes increase from the
original contract amount and related commitment of funds and maximizes
transparency. Appropriate justification shall be recorded by the procuring Entity while
choosing riskier contract types i.e. percentage based contracts, cost-reimbursable
contracts and framework contracts.

Rule 133:
(1)

Lump Sum Contracts

An Entity may use a lump sum contract for goods, works or services, where the
content, duration and outputs of the contract are well defined.

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(2)

A lump sum contract shall consist of an agreed total price for the performance of the
contract. The Entity shall, subject to the conditions of the contract, pay the
contractor the agreed lump sum price, irrespective of the actual quantity, time or
work required for performance of the contract.

(3)

Payments under a lump sum contract shall be dependent on clearly specified

outputs, deliverables or events, which may include, but not be limited to(a)

deliveries of goods, as evidenced by the appropriate delivery documentation

specified in the contract;

(b)

installation or commissioning of goods;

(c)

milestones in construction;

(d)

provisional or final acceptance of goods or works;

(e)

reports or recommendations;

(f)

the completion of drawings, bills of quantities, activity schedules or bidding

documents;

(g)

software programmes; or

(h)

workshops or training programs.

Rule 134:
(1)

Unit Price Contracts

An Entity may use a unit price contract for:

(a)

services, where the scope and duration of the contract are difficult to define;
or

(b)

works, which are not well defined, likely to change in quantity or specification
or where difficult or unforeseen site conditions are likely.

(2)

Payments under a unit price contract shall be for the actual quantity delivered or
performed, using fixed unit prices for different items specified in the contract.

(3)

For services contracts, payment shall be based on:

(a)

agreed fee rates for a specified period of time, for either nominated
personnel or a certain type or grade of personnel; and

(b)

reimbursable items, such as transportation and subsistence, using either

actual expenses or agreed unit prices.

(4)

For works contracts, payment shall be based on agreed rates for various items of
work, as priced by the contractor in the bill of quantities.

(5)

Unit price contracts shall include a maximum amount of total payments, which may
include a contingency amount for unforeseen work. The Entity shall not exceed the
maximum amount, without obtaining approval for a contract modification.

(6)

The Procurement Office shall monitor unit price contracts closely, to ensure that
progress is in accordance with the contract and that payments claimed by the
contractor are appropriate and in accordance with the contract.

Rule 135:
Framework Contracts
(1)
An Entity may use a framework contract for goods, works or services:
(a)

where the items are needed on call, but where the quantity and timing of
the requirements cannot be defined in advance; or

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(b)

to reduce procurement costs or lead times for items which are needed
repeatedly or continuously over a period of time, by having them available on
a call off basis.

(2)

Payments under a framework contract shall be for the actual quantity delivered or
performed during the time period covered by the contract, using the fixed unit prices
specified in the contract.

(3)

Framework contracts may include an estimated quantity or value, but shall not
commit to purchasing this estimated quantity or value.

(4)

Framework contracts may commit to purchasing a minimum quantity or value or to

purchasing all similar requirements from the contractor, where this is necessary or
preferable to obtain competitive prices.

(5)

Framework contracts shall specify the arrangements for obtaining specific

requirements during the period of the contract, using call-off or delivery orders.

Rule 136:
Percentage Based Contracts
(1)
An Entity may use a percentage based contract where it is appropriate to relate the
fee paid directly to estimated or actual costs or amounts, such as the value of a
contract or sale.
(2)

The contract shall clearly define the total cost from which the percentage is to be
calculated and the percentage to be paid.

(3)

A percentage based contract may include:

(a)

a fixed target cost or amount;

(b)

minimum or maximum fees;

(c)

a sliding scale of fees; and/or

(d)

incentives fees, related to any savings made through economic design,

discounts obtained, cost reductions or similar.

Rule 137:
Cost Reimbursable and Target Price Contracts
(1)
An Entity may use a cost reimbursable or target price contract for:

(2)

(3)

(a)

emergency works, where there is insufficient time to fully calculate the costs
involved; or

(b)

high risk works, where it is more economical for the Entity to bear the risk of
price variations than to pay the contractor to accept the risk, or where a
contractor will not accept the risk.

Payment shall be for:

(a)

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

(b)

a fee or profit, as specified in the contract.

Where a target price can be agreed, an incentive payment may also be made for any
cost savings.

Rule 138:
Contract for design, supply and erection
(1)
Under a contract for design, supply and erection, the supplier is responsible for
design of the plant, its delivery at project site, assembly of all parts and erection,
testing and commissioning, and also, if specifically indicated in the scope of the
contract, training.

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(2)

Use of the contract for design, supply and erection is appropriate for procurement of
major power plants, pumping stations and the like.

(3)

When a contract for design, supply and erection is utilized, the prequalification
procedure may be applied, and two-stage tendering may be appropriate.

Rule 139:
Turnkey contracts for industrial plant
(1)
A turnkey contract is a contract that only specifies the output and performance of
the industrial plant and the feed stock.
(2)

A turnkey contract may be used for procurement of industrial plants such as fertiliser
plant, milk processing plant and the like.

(3)

In accordance with sub-Rule 139(1), the turnkey contract shall stipulate that the
supplier is responsible for design, procurement of all inputs, delivery and erection at
site, testing, commissioning and, in some cases, operation for an initial period.

(4)

In turnkey contracts, the supplier is subject to applicable quality standards for

designing, implementation and technical specifications, in accordance with the
stipulations in the contract.

Rule 140:
Design and build contracts
(1)
In the design and build contract, the contractor is responsible for the design and
construction of the structure. The Entity, through its engineers shall verify and clear
the design before the contractor may proceed with the construction.
SECTION C Contract Documents
Rule 141:
Contents of Contract
(1)
Entities shall use the contract form included in the appropriate standard bidding
documents issued by the PPU for drafting individual contract documents.
(2)

The draft contract shall be included in the solicitation documents issued, where
procurement is conducted using the tendering or the request for proposals methods
of procurement. In all other cases, where the draft contract is not included, any
solicitation documents shall clearly state the type of contract and key contract terms
which will apply.

(3)

The contract document shall include all contract terms and conditions. In particular,
the contract document shall include:
(a)

the general conditions of contract or, in the case of purchase orders, at least
a reference to the general conditions which apply;

(b)

the special conditions of contract;

(c)

a statement that the special conditions of contract prevail over the general
conditions and the order of priority of other contract documents;

(d)

a clear description of the goods, works or services procured by the contract,

including the technical requirements, quantity and delivery or completion
schedule, based on the description included in the solicitation documents and
the contractors bid, subject to any modifications agreed;

(e)

the total contract price and, if applicable, the conditions applicable to varying,
adjusting, modifying or recalculating the actual price payable;

(f)

the payment conditions, including the payment period, schedule, currency

and documentation required; and payments by documentary credit, if any, for
international transactions.

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(4)

(g)

any requirement for securities;

(h)

the procedures agreed for dispute settlement;

(i)

other key contract terms as required by the standard documents, including,

but not limited to warranties, insurance, subcontracting, inspection and
acceptance, contract completion, delays in performance or other nonperformance, force majeure and variation, modification and termination of
the contract; and

(j)

information on the Governments policy on fraud and corruption, including the

debarment of bidders.

The pricing of a contract shall be in accordance with one of the contract types
permitted in Section B of this Chapter.

Rule 142:
Price Adjustment
(1)
For contracts with a duration of more than twelve(12) months, the Entity may
include a price adjustment provision, where it determines that it is more economical
for the Entity to accept the risk of increased costs than to pay an additional cost for
the contractor to accept the risk.
(2)

(3)

Where a price adjustment provision is included, the contract shall clearly state:
(a)

the formula for calculating adjustments, which shall separate the total price
into components, such as labour, equipment, materials and fuel;

(b)

price indices for each component specified in the formula;

(c)

any correction factor to take into account differences in the payment currency
and the currencies of the source of the input and price index;

(d)

the base date for application of the formula;

(e)

the frequency with which the formula shall be applied; and

(f)

any minimum variation required to qualify for price adjustment and any other
restrictions or conditions.

The contract may also provide that, when the price adjustment provisions results in
an increase exceeding a specified percentage or amount of the contract, the Entity
may either:
(a)

terminate the contract; or

(b)

re-negotiate the contract in order to stay within the budget or otherwise

minimise costs for the Entity.

Rule 143:
Payment Terms
(1)
The period for payment shall be thirty (30) days from the Entitys acceptance of the
contractors invoice, unless this is varied in the special conditions of contract.
(2)

The contract shall provide for compensation to be paid to the contractor, where the
Entity fails to make payment within the period specified in the contract. The contract
shall clearly state the rate to be applied, how compensation payments shall be
calculated and any other conditions relating to payment of compensation.

(3)

The contract shall clearly state the currency or currencies of payment and, where
required, the exchange rates or the source of exchange rates applicable.

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(4)

The contract shall clearly specify the payment schedule, which may include advance
payments, progress payments and retained payments in accordance with Rules 144,
145 and 146.

Rule 144:
Advance Payments
(1)
The contract may provide for advance payments to the contractor, where this is
necessary to ensure effective implementation of the contact or to obtain competitive
prices.
(2)

Advance payments may be made for costs such as mobilization, start up, the
purchase of materials or costs related to goods which are specially or custom
manufactured for the Entity.

(3)

The total amount of an advance payment shall not exceed thirty (30) percent of the
total contract price.

(4)

Unless otherwise specified in the contract, any advance payment shall only be made
against the provision by the contractor of an advance payment guarantee, covering
the full amount of the advance payment and in accordance with rule 148.

(5)

The contract shall state that materials, equipment and personnel for which an
advance payment is received, shall be used only for performance of that contract. A
works contract may require that materials, equipment and personnel for which an
advance payment is received, must be committed to the site or sites of the works.

(6)

Where so specified in the contract, advance payments may be recovered from

subsequent payments to the contractor, which shall be subject to a percentage
deduction equal to the percentage paid as the advance payment.

Rule 145:
Progress Payments
(1)
The contract may provide for progress payments to the contractor.
(2)

Progress payments shall be either:

(a)

payment of a specified percentage or amount of the contract value following

particular events, milestones or submission of deliverables specified in the
contract; or

(b)

payment for the actual quantities of goods, works or services delivered or

completed.

(3)

Progress payments shall not exceed the cost or value of the goods, works or services
delivered or completed.

(4)

Progress payments shall only be made against interim certificates or other

documentation proving delivery or completion of the goods, works or services
subject to the progress payment or submission of the deliverables specified.

Rule 146:
Retained Payments
(1)
The contract may provide for a specified percentage or amount of payments to the
contractor to be retained.
(2)

The contract shall clearly specify:

(a)

the percentage or amount to be retained;

(b)

the period or event at which the retention is to be released, which may

include, but not be limited to installation of goods, completion of the contract
or expiry of a warranty period; and

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(c)
(3)
(4)

the documents required to prove completion of the event or period in(b)

above.

Where so specified in the contract, the contractor may substitute a payment security
for a retention payment.
The threshold for performance security and retention money together shall not
exceed 15%( fifteen percent) of contract value.

Rule 147:

Payment Documents

(1)

The contract document shall require the contractor to submit an original invoice for
each payment requested.

(2)

The contract document shall clearly state the documents against which payments
shall be made.

(3)

The documents required shall relate to the delivery, progress or performance of the
contract for which the payment is due or provide evidence of fulfilment of contract
terms and conditions . The documents required may include, but not be limited to:

(4)

(a)

Goods Received Notes, Bills of Lading, Air Waybills or other documentation

proving delivery or receipt of goods, in accordance with the terms of the
contract;

(b)

Packing Lists, or other documentation proving the content of any

consignments delivered;

(c)

Inspection Certificates or Reports, or other documentation proving that

goods, works or services have passed inspection;

(d)

Installation, Commissioning, Acceptance or Handover Certificates, or other

documentation proving that goods, works or services have been accepted;

(e)

Insurance Certificates or other documentation proving that the contractor has

taken out the required insurance for the goods, works or services;

(f)

Certificates of Origin or evidence of nationality, where goods supplied or

personnel employed under a contract are subject to restrictions on origin or
nationality;

(g)

Interim Certificates, certifying the progress made in performance of a

contract, as evidence of entitlement to progress payments; or

(h)

receipts or other documentation, proving that specified costs have been

incurred, such as air tickets or timesheets for personnel.

The payment through documentary credit may be provided in case of international

transactions.

Rule 148:
Payment Securities
(1)
Where the contact permits payments to a contractor prior to the delivery or
completion of the goods, works or services to which the payment relates, the
procuring entity shall require a payment security from the contractor, unless
otherwise specified in the contract.
(2)

The value of any payment security shall be equal to the payment to which it relates.
Where appropriate, the value of a security may be progressively reduced, in line with
the contractors progress in delivering or completing the goods, works or services to
which the payment relates.

(3)

The contract shall state that the payment security must be:

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(a)

in accordance with the format and wording provided in the contract;

(b)

in a form acceptable to the Entity;

(c)

from an institution acceptable to the Entity; and

(d)

valid for the period prescribed in the contract, which shall normally be at least
twenty eight (28) days beyond the anticipated due date of the payment.

(4)

Notwithstanding the provisions of sub-Rule 148(3), the contract may permit

alternative security arrangements, in accordance with Article 45 of the Law.

(5)

The conditions for forfeiture of the payment security shall be specified in the
contract.

(6)

The Procurement Office shall release the payment security promptly to the
contractor upon completion of all the contractors contractual obligations which are
subject to the security or upon expiry of the security.

(7)

The Procurement Office shall manage payment securities in accordance with Rule
160.

CHAPTER IX CONTRACT ADMINISTRATION

SECTION A Contract Administration
Rule 149:
Contract Administration Responsibilities
(1)
The Entity shall designate a member of staff, or a team of staff, as the contract
administrator for each contract.
(2)

The contract administrator shall:

(a)

manage the obligations and duties of the Entity specified in the contract; and

(b)

ensure that the contractor performs the contract in accordance with the
terms and conditions of the contract.

(3)

In administering the contract, the contract administrator shall use existing systems.
The administrator shall use existing disbursement systems for making payments to
contractors.

(4)

The contract administrator shall be responsible for:

(a)

monitoring the performance of the contractor, to ensure that all delivery or

performance obligations are met or appropriate action taken by the Entity in
the event of obligations not being met;

(b)

ensuring that the contractor submits all required documentation;

(c)

ensuring that the Entity meets all its payment and other obligations on time
and in accordance with the contract;

(d)

ensuring that there is adequate costs, quality and time control, where
required;

(e)

preparing any required contract variations or change orders and obtaining all
required approvals before their issue;

(f)

preparing any required contract modifications and obtaining any required

approvals before their issue;

(g)

managing any handover or acceptance procedures;

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(h)

making recommendations for contract termination, where appropriate,

obtaining all required approvals and managing the termination process;

(i)

ensuring that the contract is complete, prior to closing the contract file;

(j)

ensuring that all contract administration records are kept and archived as
required; and

(k)

ensuring that the contractor and the Entity act in accordance with the Law,
these Rules and the contract.

Rule 150:
Administration of Sub-Contracts
(1)
In accordance with Article 54 of the Law, any subcontracting is subject to the prior
written consent of the Entity.
(2)

The prime contractor shall be responsible for administering any subcontracts and the
Entity shall monitor only the prime contractors management of its subcontracts.

(3)

The Entity shall not directly administer any subcontracts, except where
(a)

there is a risk of the Entity incurring undue cost or delay; or

(b)

successful completion of the prime contract is threatened; or

(c)

special surveillance of high risk or critical subsystems is required.

Rule 151:
Technical Inspection of Goods and Works
(1)
The contract shall state that the Entity has the right to inspect goods or works at any
reasonable time or place, including(a)

during manufacture or construction;

(b)

prior to shipment;

(c)

on delivery or completion; and/or

(d)

prior to final acceptance.

(2)

The contract shall require contractors to ensure that the Entitys right of inspection is
extended to subcontractors.

(3)

The Entity may:

(4)

(a)

observe tests conducted by the contractor, or any subcontractors, under their

own quality control procedures;

(b)

conduct its own inspection; and/or

(c)

employ an independent third party to undertake technical inspection.

The contract shall clearly state all requirements relating to inspection, including:
(a)

the type of inspection or test to be performed and the standards to be met;

(b)

the location or locations for inspection;

(c)

the person to carry out the inspection or tests;

(d)

when inspection is to be conducted;

(e)

who is responsible for payment of the various costs of inspection;

(f)

any notification or documentation required from contractors relating to

inspection or testing;

(g)

that samples provided for testing shall be provided free of charge by the
contractor; and

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(h)

that where goods or works fail an inspection, the contractor is liable for the
correction of any defects at his own expense and the costs of any reinspection required.

Rule 152:
Inspection and Acceptance of Goods, Works and Services
(1)
The Entity shall ensure that all goods, works and services are subject to inspection
and verification by an internal auditor, supervising engineer or inspection committee,
as appropriate, prior to their acceptance.
(2)

(3)

The inspection and verification shall ensure that:

(a)

the correct quantity has been received;

(b)

the goods, works or services meet the technical standards defined in the
contract;

(c)

the goods, works or services have been delivered or completed on time, or

that any delay has been noted;

(d)

all required deliverables have been submitted; and

(e)

all required manuals or documentation have been received.

The internal auditor, supervising engineer or inspection committee responsible for

inspecting the goods, works or services shall issue interim or completion certificates
or goods received notes, as appropriate and in accordance with the contract.

Rule 153:
Inspection Committee
(1)
Where justified by the volume of procurement, an Inspection Committee shall be
appointed by the Award Authority, consisting of at least three persons, including:
(a)

a representative of the Procurement Office;

(b)

a storekeeper or other member of staff responsible for the management of

supplies; and

(c)

a representative of the end user, where goods are being procured for a
particular department.

SECTION B Contract Modifications

Rule 154:
Contract Modifications
(1)
Where any change to the terms and conditions of a contract is required, other than
contract variations permitted in accordance with Rule 155, the Procurement Office
shall prepare a written contract modification.
(2)

Any contract modification shall only be valid when signed by authorized

representatives of both the Entity and the contractor.

(3)

Where the contract modification causes the contract value to be increased by up to

twenty five (25) percent of the original contract value, the Procurement Office shall
obtain the approval of the appropriate award authority specified in Article 91 of the
Law.

(4)

Where a contract modification would cause the contract value to be increased by

more than twenty five (25) percent of the original contract value, the additional
requirement shall be treated as a new procurement requirement. Where the
additional requirements could be obtained from an alternative contractor, the end
user shall initiate new procurement proceedings, rather than proceeding with a
contract modification. Where the additional requirements can only be obtained from

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the existing contractor, the end user shall justify the procurement as a single source
procurement and seek approval from the appropriate Award Authority.
Rule 155:
Contract Variations
(1)
Where appropriate, in order to facilitate adaptations to unanticipated events or
changes in requirements, the contract may permit:
(a)

the contract administrator, supervising engineer or other designated official

to order variations to the description of goods, works or services, the price or
the completion date; or

(b)

defined compensation events to justify variations in the price or completion

date.

(2)

Where a variation results in a change in price, any additional funds shall be

committed, prior to issue of the variation, unless such funds are already provided by
any committed amount for contingencies or similar provisions.

(3)

The contract shall include a maximum limit on the variations which may be issued
without a contract modification in accordance with Rule 154.

(4)

The contract shall clearly state any approval requirements relating to contract
variations.

Rule 156:
Contract Termination
(1)
The contract document shall specify the grounds on which the contract may be
terminated and specify the procedures applicable to termination.
(2)

The Procurement Committee shall obtain the approval of the Award Authority which
authorized the original contract, prior to terminating the contract. The request for
approval shall clearly state:
(a)

the reasons for termination;

(b)

actions which have been taken to avoid the need for termination;

(c)

the contractual grounds for termination; and

(d)

the costs, if any, for which the Entity will be liable following termination.

CHAPTER X - MEASURES TO PROMOTE TRANSPARENCY AND

ACCOUNTABILITY
SECTION A Transparency
Rule 157:
Procurement Records
(1)
The Procurement Office shall maintain an individual file for each procurement
requirement, which shall be marked with the relevant procurement reference
number. The file shall contain all information, documents and communications
related to that procurement proceeding, including, but not limited to:
(a)

the authorized procurement requisition, including the description of goods,

works or services required;

(b)

the procurement plan, including the justification for the use of any method
other than open tendering or request for proposals;

(c)

a copy of any invitation to pre-qualify or call for expressions of interest notice

and any pre-qualification documents;

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(2)

(d)

all applications to pre-qualify or expressions of interest received and the

evaluation of qualifications or comparison of expressions of interest;

(e)

the invitation to bid notice or any shortlist or list of pre-qualified bidders;

(f)

the bidding documents, request for proposals or other solicitation documents

issued, including any clarifications or amendments issued and minutes of any
pre-bid meetings;

(g)

the record of solicitation documents issued, bids received and all bid or
proposal openings;

(h)

all bids, proposals or quotations received, other than bids or proposals

returned unopened to bidders;

(i)

copies of all clarifications requested and received;

(j)

the evaluation report, including any individual score sheets or other

documentation;

(k)

records of any negotiations;

(l)

any notice of proposed award;

(m)

any notice of bid acceptance;

(n)

a copy of the contract or purchase order document;

(o)

copies of letters rejecting and debriefing unsuccessful bidders;

(p)

a copy of any published notice of contract award;

(q)

copies of all contract variations and modifications;

(r)

all documentation and correspondence relating to contract administration;

(s)

copies of all documentation demonstrating performance of the contract, such

as inspection reports, delivery documentation and interim certificates;

(t)

any documentation relating to cancellation of a procurement process or

termination of a contract;

(u)

information relating to any applications for review; and

(v)

all approvals from the Award Authority.

Procurement records shall be kept for a minimum period of five (5) years following
completion or termination of the contract or cancellation of the procurement
proceedings.

Rule 158:
Summary Record of Procurement Proceedings
(1)
The Procurement Office shall prepare a summary record of the procurement
proceedings, containing the information required in Article 66(1) of the Law.
(2)

The summary record shall be made available in accordance with article 66 of the
Law.

Rule 159:
Confidentiality and Disclosure of Records
(1)
In disclosure of the summary record of procurement proceedings, pursuant to Rule
158, in debriefing bidders pursuant to Rule 129 and in any other contexts, the Entity
shall not, except when ordered to do so by a competent court, and subject to the
conditions of such an order, disclose:

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(2)

(a)

information, if its disclosure would be contrary to law, would impede law

enforcement, would not be in the public interest, would prejudice legitimate
commercial interest of the parties or would inhibit fair competition; or

(b)

information relating to the procurement process, other than the summary

required in accordance with Rule 158.

All procurement records shall be made available for inspection upon demand by the
PPU, the Auditor-General and other oversight organs authorised by the laws of the
Islamic Republic of Afghanistan.

Rule 160:
Management of Securities and Similar Documents
(1)
All original securities, negotiable documents, financial instruments or similar
documents received by the Entity shall be kept by the Procurement Office in a safe
or other secure, locked location.
(2)

Copies of the original documents referred to in sub-Rule 160(1) shall be kept in the
procurement records, annotated with details of the location and date of receipt of
the original document.

(3)

The Procurement Office shall maintain a register of all securities and similar
documents in its possession, which shall record at least:

(4)

(a)

the name of the bidder or contractor providing the document;

(b)

the procurement proceedings or contract to which it relates;

(c)

the name of any financial institution who issued the document;

(d)

the dates of issue and receipt of the document;

(e)

the expiry date of the document; and

(f)

the value of any security.

The Procurement Office shall implement systems and procedures to ensure that:
(a)

the register referred to in sub-Rule 160(3) is updated whenever documents

are added, removed or amended;

(b)

the expiry dates of documents are monitored and the appropriate staff
notified a reasonable period before the expiry of any document;

(c)

any required extensions to validity are requested a reasonable period before

the expiry of any document;

(d)

any reductions in the value of securities are recorded; and

(e)

documents which have expired or are to be released are returned promptly to

bidders and contractors.

Rule 161:
Communications
(1)
All communications between the Entity and bidders shall be in writing and
communications in any other form shall be referred to and recorded in writing.
SECTION B Accountability
Rule 162:
Declaration of Conflicts of Interest
(1)
All members of a Procurement Office, Evaluation Committee or Procurement
Committee, all staff involved in contract administration and all Ministers or Director
General and members of the Special Procurement Commission shall, prior to
commencing any procurement activity or the approval of any procurement activity,,
sign a declaration to the effect that they have no relationship of the following types:

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(2)

(a)

a marital or direct birth relationship with a bidder, its legal counsel or its
officers;

(b)

during the last three years, has been an employee or officer of a bidder or
held a financial interest in a bidder;

(c)

is negotiating or has an arrangement concerning prospective employment in

a bidder.

Any member of a Procurement Office, Evaluation of Bids Committee or Procurement

Committee, any member of staff involved in contract administration and any
Ministers or Director General and members of the Special Procurement Commission
who become aware that they have a relationship referred to in sub-Rule 162(1) with
a bidder shall immediately report this to their superiors and request exclusion from
all activities relating to the procurement proceedings, the approval of the
procurement proceedings or contract award and contract administration.

Rule 163:
Fraud and Corruption
(1)
The bidders, suppliers, contractors, and consultants shall observe the highest
standard of ethics during the procurement and execution of such contracts.
(2)

In pursuit of this policy and for the purposes of this provision, the terms set forth
below are defined as follows:
(a)

corrupt practice means the offering, giving, receiving, or soliciting, directly

or indirectly, of anything of value to influence the action of a public official in
the procurement process or in contract execution;

(b)

fraudulent practice means a misrepresentation or omission of facts in order

to influence a procurement process or the execution of a contract;

(c)

collusive practice means a scheme or arrangement between two or more

bidders, with or without the knowledge of the Entity, designed to establish
bid prices at artificial, non-competitive levels; and

(d)

coercive practice means harming or threatening to harm, directly or

indirectly, persons or their property to influence their participation in the
procurement process or affect the execution of a contract.

(3)

A proposal for award shall be rejected if it is determined that the bidder

recommended for award has, directly or through an agent, engaged in corrupt,
fraudulent, collusive or coercive practices in competing for the contract in question.

(4)

A firm or individual shall be sanctioned and declared ineligible, either indefinitely or

for a stated period of time, to be awarded a procurement contract if at any time it is
determined that they have, directly or through an agent, engaged, in corrupt,
fraudulent, collusive or coercive practices in competing for, or in executing, a
contract.

Rule 164:
Post-employment Restrictions on Public Officials
(1)
Individuals who served as procurement officers or participated in the approval of any
procurement activities with respect to a procurement shall not:
(a)

participate in any manner, as an officer, employee, agent or representative of

a bidder or contractor, in any negotiations or technical discussions leading to
the award, modification or extension of the contract for such procurement; or

(b)

participate personally or substantially on behalf of a contractor in the

performance of such contract.

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(2)

The restriction in sub-Rule 164(1) shall remain in effect for the duration of the
procurement proceeding and contract, if any, in question.

Rule 165:
Avoidance of conflicts of interest in consultative services
(1)
The main objective of conflict of interest Rules is to create predictability for current
or future ineligibility.
(2)
Consultants shall provide professional, objective, and impartial advice and at all times
hold the clients interests paramount, without any consideration for future work, and
strictly avoid conflicts with other assignments or their own corporate interests.
(3)

Consultants shall not be hired for any assignment that would, by its nature, be in
conflict with their prior or current obligations to other clients, or that may place them
in a position of not being able to carry out the assignment in the best interest of the
Entity. For example, consultants hired to prepare engineering design for an
infrastructure project shall not be engaged to prepare an independent environmental
assessment for the same project, and consultants assisting a client in the
privatization of public assets shall not purchase, nor advise purchasers of, such
assets.

(4)

Without limitation on the generality of the rule referred to in sub-Rule 165(1) and
165(2), Consultants shall not be hired under the circumstances set forth below:

(5)

(a)

A firm which has been engaged by the Entity to provide goods or works for a
project, and any of its affiliates, shall be disqualified from providing consulting
services for the same project.

(b)

Conversely, a firm hired to provide consulting services for the preparation or

implementation of a project, and any of its affiliates, shall be disqualified from
subsequently providing goods or works or services related to the initial
assignment, other than in the case when, subject to satisfactory performance
of the initial assignment, it is essential for continuity that there be a
continuation of the firms earlier consulting services for the same project.

This provision does not apply to the various Contractors (consultants, or suppliers)
that together are performing the suppliers obligations under a turnkey or designand-build contract.

SECTION C Debarment of Bidders and Contractors

Rule 166:
Grounds for Debarment of Bidders and Contractors
(1)
The PPU may exclude a bidder or contractor from participation in all public
procurement on any of the grounds specified in Article 70 of the Law.
Rule 167:
Submission of a Petition to Debar
(1)
A petition to debar a bidder or contractor may be brought by an Entity, the PPU, or
any other oversight body authorised by the laws of the Islamic Republic of
Afghanistan.
(2)

A petition to debar shall be submitted to the PPU and shall contain:

(a)

the name of the bidder or contractor;

(b)

the grounds for recommending debarment;

(c)

details of the procurement proceedings or contract to which the petition

relates; and

(d)

documentary or other evidence supporting the petition.

Rule 168:

Investigation of Petitions to Debar

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(1)

(2)

(3)

(4)

Upon receipt of a petition to debar, the PPU shall immediately:

(a)

notify the bidder or contractor, giving details of the petition and informing the
bidder or contractor of its right to a hearing or to submit written evidence
prior to any decision to exclude, as long as such evidence is submitted within
ten working days of receipt of the notice; and

(b)

institute an investigation.

In investigating the petition, the PPU shall consider, where appropriate(a)

the information contained in the petition and other information obtained

through consultation with the affected Entity and the body bringing the
petition;

(b)

information provided by the bidder or contractor, through a hearing or in

written form; and

(c)

any other relevant sources of information, including audits already conducted

by the PPU or other oversight bodies or information from other bidders.

The following procedures shall apply to any hearings:

(a)

any hearing shall be organised within ten working days of the request for a
hearing from the bidder or contractor;

(b)

the bidder or contractor has the right to be represented by counsel;

(c)

the hearing shall be recorded and all evidence presented shall be preserved;
and

(d)

-witnesses must testify under oath and may be cross-examined.

During the investigation of any petition to debar a bidder or contractor, the bidder or
contractor shall be permitted to participate in public procurement and shall be
required to continue performance of any contract, but any recommended contract
award to the bidder shall be delayed, pending the outcome of the investigation.

Rule 169:
Decisions to Debar
(1)
Upon completion of its investigation and following any hearing, the PPU shall issue a
written decision, indicating:

(2)

(a)

whether the petition is upheld or rejected;

(b)

the reasons for its decision; and

(c)

the length of any debarment imposed.

The written decision shall be sent to:

(a)

the bidder or contractor;

(b)

the Entity/body who submitted the petition; and

(c)

the affected Entity, where the petition was not submitted by the Entity.

(3)

Any debarment imposed shall take effect immediately upon issue of the written
decision.

(4)

During the period of any debarment, a bidder shall not be permitted to participate in
any public procurement proceedings, but shall be required to continue performance
of any contracts already awarded.

(5)

The bidder or contractor may appeal against the debarment to the Administrative
Review Committee.

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(6)

The PPU shall maintain a list of excluded bidders, which shall be circulated to all
procuring entities. The PPU shall immediately inform all procuring entities of any
changes to the list, including bidders removed from the list following expiry of their
debarment period.

SECTION D Administrative Review

Rule 170:
Submission of Application for Review
(1)
Any application for review submitted by a bidder, in accordance with Article 71 of the
Law, shall contain:
(a)

details of the procurement proceedings to which the application relates,

including the procurement reference number;

(b)

details of the provision of the Law, these Rules or other instrument which is
alleged to have been breached;

(c)

an explanation of how the provision allegedly has been breached, including,

where known, the date and the names of responsible officers; and

(d)

any available documentary or other evidence supporting the application.

(2)

The application for review shall be submitted in writing to the Head of the procuring
entity, unless a contract has already been awarded.

(3)

The application for review may be submitted in writing to the Administrative Review
Committee established pursuant to Article 72(1) of the Law where:

(4)

(a)

a contract has already been awarded;

(b)

the Head of the procuring entity has failed to issue a decision within seven
(7) working days of the date of receipt of the application for review; or

(c)

the bidder wishes to appeal against the decision of the Head of the procuring
entity.

Any application for review shall be submitted within ten (10) working days of:
(a)

the date when the bidder became aware of the circumstances giving rise to
the application for review; or

(b)

the date of the Head of the procuring entitys decision or failure to issue a
decision.

Rule 171:
(1)

(2)

Review by Head of the Entity

Upon receipt of an application for review, the head of procuring entity shall institute
and investigation, which shall consider, where appropriate(a)

the information and evidence contained in the application for review;

(b)

information from the procuring entitys procurement records;

(c)

information provided by staff of the procuring entity; and

(d)

information from other bidders.

The Head of the procuring entity shall issue a written decision within 7 working days
of receipt of the application for review, which shall indicate(a)

whether the application is upheld or rejected;

(b)

the reasons for decision; and

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(c)
(3)

(4)

any corrective measures to be taken.

The decision shall be sent to(a)

the bidder who submitted the application for review;

(b)

all other bidders;

(c)

the procurement office and procurement committee of procuring entity; and

(d)

the PPU

The Head of the entity decision or its failure to decide within the required time may
be submitted through an application to the Administrative Review Committee
established pursuant to Article 72(1) of the Law, within ten (10) working days from
either the decision or expiration of the deadline to issue a decision.

Rule 172:
Review by Administrative Review Committee
(1)
Upon receipt of an application for review, the Chairman of the Administrative Review
Committee shall appoint a Board comprise of a Head experienced in dispute
resolution and two Board members trained and knowledgeable in procurement which
shall decide within ten (10) working days after the receipt of an appeal or an
application for review in accordance with rule 173(2).
(2)

The membership of the Review Board shall be determined taking into account the
nature of the procurement concerned and the experience required.

(3)

The Review Board shall institute an investigation, which shall consider, where
appropriate:

(4)

(5)

(a)

the information and evidence contained in the application for review;

(b)

information from the Entitys procurement records;

(c)

information provided by staff of the Entity;

(d)

information from other bidders; and

(e)

information in the investigation and decision of the Head of the Entity, where
applicable.

The Review Board shall issue a written decision within ten (10) working days, which
shall indicate:
(a)

whether the application is upheld or rejected;

(b)

the reasons for the decision; and

(c)

any corrective measures to be taken.

The decision shall be sent to:

(a)

the bidder who submitted the application for review;

(b)

all other bidders; and

(c)

the Entity.

Rule 173:
(1)

Composition of Administrative Review Committee and Review

Boards
In establishing the Administrative Review Committee, the PPU shall ensure that it
includes a wide range of representatives, skills and experience, including:
(a)

representatives of both the public and private sector; and

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(b)
(2)

(3)

skills and experience in a range of technical areas, including those most

commonly procured by entities.

In establishing a Review Board to consider an individual application for review, the

Chairperson of the Administrative Review Committee shall select three members of
the Administrative Review Committee, ensuring that:
(a)

the proposed Review Board includes members trained and knowledgeable in

procurement, with at least one of those individuals with relevant technical
skills and experience in the subject of the review; and

(b)

none of the members have any conflict of interest in the review.

Where the Administrative Review Committee does not include the skills or experience
required to effectively consider an application for review, the Chairperson of the
Administrative Review Committee shall notify the PPU and request the temporary
appointment of additional members of the Administrative Review Committee, who
have the required skills and experience.

CHAPTER XI - INSTITUTIONAL ARRANGEMENTS FOR PUBLIC

PROCUREMENT
SECTION A Procuring Entities
Rule 174:

Establishment of Procurement Offices

(1)

Each Entity shall establish a Procurement Office and, where appropriate, subsidiary
Procurement Offices for subdivisions of the entity.

(2)

The size and level of staffing of the Procurement Office, and any subsidiary
Procurement Offices, shall be determined by the procurement workload of the Entity,
taking into account the volume, value, complexity and type of procurement
conducted.

(3)

The location and structure of the Procurement Office, and any subsidiary
Procurement Offices, shall be determined by the Entity, in accordance with its
operational requirements.

(4)

The Procurement Office shall include staff with appropriate technical skills, where an
Entity has a significant volume of specialised procurement or procurement requiring
significant technical input.

(5)

Members of the Procurement Office shall be appointed in accordance with the

normal procedures applicable to the Entity, taking into account the certification and
approval requirements issued by the PPU.

Rule 175:
Functions of Procurement Offices
(1)
Pursuant to the functions specified in Article 74(1) of the Law, the Procurement
Office shall:
(a)
(b)

Provide and regulate procurement plan;

prepare, publish and distribute invitations to pre-qualify, pre-qualification
documents and invitations to express interest, tendering announcement,
request, bidding and other documents related to procurement proceedings;
such documents when required;

(c)

receive, open and safeguard applications to pre-qualify and expressions of

interest;

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(2)

(d)

Maintain any standing lists of bidders or lists of pre-qualified bidders required

by the Entity;

(e)

Receipt of quotations bids and proposals;

(f)

Prepare procurement contracts

(g)

Perform secretariat service for the Procurement Committee;

(h)

Facilitate in order to implement Article 8 of the Law;

(i)

Prepare shortlists and lists of pre-qualified bidders to the Procurement

Committee for approval by the Award Authority;

(j)

Prepare proposition of the membership of Evaluation of Bids Committee for

the Procurement committee to submit to the Award Authority for approval;

(k)

Preparation of contract award recommendations for the Procurement

Committee and award authority,

(l)

prepare notices of proposed award and notices of bid acceptance;

(m)

prepare contract documents, in line with the award decision;

(n)

prepare and issue rejection and debriefing letters;

(o)

prepare and publish notices of contract award;

(p)

prepare contract variations and modifications;

(q)

assist with the inspection and acceptance of goods, works and services,
including participating in Inspection and Receipt Committees as required;

(r)

Oversee implementation of procurement contracts provided that it is not

carried out by end-user;

(s)

Assessment of the quantity and quality of the procured goods, works and
services;

(t)

ensure that procurement records are maintained, in accordance with these

Rules;

(u)

prepare any reports required; and

(v)

provide information, as required, for any petition or investigation to debar a

bidder or contractor or any investigation under review procedures.

(w)

Any other duty considered as necessary under the Law.

In conducting its functions, the Procurement Office shall at all times liaise with:
(a)

the end user who initiated the procurement, to ensure that the procurement
meets its needs; and

(b)

the PPU and other oversight bodies, to share appropriate information and
facilitate the conduct of monitoring and other PPU functions.

Rule 176:
(1)

Functions of Procurement Committees

The Procurement Committee shall have the following functions:

(a)

Verifying proper procurement planning and preparation of procurement

proceedings

(b)

Approving the proposed invitations, notices, requests, and other documents

related to procurement proceeding;

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(c)

Conduct the opening of the Bids;

(d)

Reviewing and evaluating reports and submitting comments regarding

contract awards;

(e)

Rejecting unsuccessful bids and proposing contract award recommendations

within its level of authority.

(f)

Forwarding recommendations for contract modifications to higher award

authorities;

(g)

Discharging any other duties or functions as provided for by Law or the Rules
of Procedure.

Rule 177:

Composition of Procurement Committees

(1)

The Procurement Committee shall be composed of the officials appointed on

proposal of the Entity and approval of the Award Authority, in accordance to Articles
3(19) and 76(1) of the Law. The members shall satisfy any requirements for
certification of credentials as required by the PPU under Article 81(1) (x) of the law.
While appointing members of the Procurement Committee care shall be taken to
ensure that the Committee is headed by an official who has the knowledge of the
overall operations of the Entity and sufficient seniority to head the Committee, the
other members should have appropriate level of knowledge and experience of
procurement and finance respectively.

(2)

where any member is unable to attend a meeting of the Procurement Committee,

that member shall delegate his/her authority to an appropriate senior official, who
shall attend the meeting in his place. Members of the Procurement Committee shall
ensure that their authority is only delegated to officials with appropriate skills and
experience to represent them at a meeting of the Procurement Committee.

(3)

No person responsible for reviewing the work of a Procurement Committee, or who is

a member of Award Authority, shall be eligible to be appointed member of that
Committee.

Rule 178:

Procurement Committee Meetings

(1)

Procurement Committee meetings shall be attended by all three members of the

Committee, or their nominated representatives.

(2)

Decisions of the Procurement Committee shall be unanimous. Where unanimity

cannot be achieved, the decision shall be referred upwards to the Minister or other
higher award authority.

(3)

Where any member of the Procurement Committee has a conflict of interest in any
submission, he shall declare his interest in the submission, leave the meeting while
the matter is considered and shall not participate in the deliberations or decisionmaking process of the Committee in relation to that submission.

(4)

The Procurement Committee may summon independent advisers or members of the

Procurement Office to explain submissions or provide technical advice, where
required.

(5)

The secretary of the Procurement Committee shall record minutes of all Procurement
Committee meetings, which shall include:
(a)

a register of attendance;

(b)

a list of all submissions considered;

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(c)

the decision made for each submission, including any major issues discussed,
the reasons for any rejections and any clarifications or minor amendments to
which the approval is subject;

(d)

any conflicts of interest declared by members;

(e)

any dissenting opinions among Procurement Committee members.

Rule 179:
(1)

(2)

Approval by the Award Authorities

In considering submissions made by the Procurement Committee, Award Authority

may
(a)

approve a submission;

(b)

reject a submission with reasons; or

(c)

Approve a submission, subject to clarifications or minor amendments.

Award Authority shall not(a)

modify a submission; or

(b)

Reject any submission without good reason.

(3)

Any submission rejected by Award Authority may be corrected and resubmitted and
the Award Authority shall provide explanation and justification of its reasons for any
rejection, in order to assist the Procurement Committee and Procurement Office in
remedying any defects in the submission.

(4)

Where Award Authority has a conflict of interest in any submission, he shall declare
his interest in the submission and refer it to the Special Procurement Commission for
a decision.

(5)

The Award Authority may summon independent advisers or members of the

Procurement Office or Procurement Committee to explain submissions or provide
technical advice, where required.

(6)

All decisions of Award Authority, including reasons for any rejections, shall be
recorded and notified to the Procurement Committee in writing.

(7)

Where any contract award or contract modification is beyond his authority level, the
Award Authority shall verify the submission made and promptly submit it to the
Special Procurement Commission.

SECTION B Arrangements at Other Levels

Rule 180:

Approval by the Special Procurement Commission

(1)

In considering submissions made by Entities, the Special Procurement Commission

may approve or reject the approval of a contract within twenty one (21) working
days; otherwise the contract shall be considered as approved.

(2)

The Special Procurement Commission shall not:

(3)

(a)

modify a submission; or

(b)

reject any submission without good reason.

Any submission rejected by the Special Procurement Commission may be corrected

and resubmitted and the Special Procurement Commission shall provide explanation
and justification of its reasons for any rejection, in order to assist the procuring
entity in remedying any defects in the submission.

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(4)

All decisions of the Special Procurement Commission, including reasons for any
rejections, shall be recorded and notified to the procuring entity in writing.

(5)

In the case of state owned enterprises and public companies, the rules applicable to
approval by the Special Procurement Commission shall apply to the Board of
Directors, or other individual or body specified in accordance with provisions of
Article 91(2) of the Law or such other instructions issued by PPU in accordance with
Rule 184.

Rule 181:

Special Procurement Commission Meetings

(1)

The Special Procurement Commission shall establish and circulate to all Entities a
regular schedule of meetings, to facilitate the processing of submissions by Entities.

(2)

The meetings of the Special Procurement Commission shall be conducted in

accordance with the Transaction of Business Rules adopted under the Law.

(3)

Special Procurement Commission meetings shall be attended by members of the

Committee. Where any member is unable to attend a meeting of the Special
Procurement Commission, that member shall delegate authority to an appropriate
senior official, who shall attend the meeting in his place.

(4)

Decisions of the Special Procurement Commission shall be by simple majority of the

members present for the meeting of the Commission.

(5)

Where any member of the Special Procurement Commission has a conflict of interest
in any submission, he shall declare his interest in the submission, leave the meeting
while the matter is considered and shall not participate in the deliberations or
decision-making process of the Committee in relation to that submission.

(6)

The Special Procurement Commission may summon independent advisers or

members of the Procurement Office, members of the Procurement Committee or the
Award Authority to explain submissions or provide technical advice, where required.

(7)

The Special Procurement Commission shall maintain minutes of all its meetings,
which shall include:
(a)

a register of attendance;

(b)

a list of all submissions considered;

(c)

the decision made for each submission, including any major issues discussed,
the reasons for any rejections and any clarifications or minor amendments to
which the approval is subject; and

(d)

any conflicts of interest declared by members.

Rule 182:
(1)

Special Agency for procurement of Common Use Items

Any special agency, central administration or special Procurement Office and

Procurement Committee designated by the Government to conduct the procurement
of common use items shall:
(a)

liaise with all Entities, as part of the annual procurement planning process
and on an ongoing basis, to establish a list of common use items and
estimated needs;

(b)

issue regularly updated information to all Entities on the items available,

prices, delivery times and arrangements established for ordering or obtaining
such items;

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(2)

The list of common use items established pursuant to sub-Rule 182(1)(a) shall be
limited to items where the benefits of centralized purchasing can be demonstrated.

(3)

Any special agency, central administration or special Procurement Office and

Procurement Committee designated to conduct the procurement of common use
items may utilize:
(a)

warehouses to store common supplies; and

(b)

framework contracts or other appropriate contractual arrangements for the

procurement of common use goods, works or services.

Rule 183:
(1)

Contract Management Office (CMO)

The CMO established in Ministry of Finance in accordance with the provisions of

Article 78 of the Law shall:
(a)

serve as the Office of the Special Procurement Commission and provide

secretariat support to the Special Procurement Commission in conduct of its
business.

(b)

Regulate and coordinate the management of the States contracts included at

the level of the Special Procurement Commission.

(2)

The CMO shall have overall responsibility for planning and executing the work of the
Special Procurement Commission as well as record keeping. It shall be responsible
for the execution of all rules and policies and shall attend to statutory requirements
imposed on the Special Procurement Commission.

(3)

The CMO shall be responsible for the management of day-to-day affairs of the
Special Procurement Commission and shall have liaison with the Entities and other
agencies for any matter pertaining to the day-to-day operation of the Special
Procurement Commission.

SECTION C Delegation of Procurement Authority

Rule 184:
(1)

Setting and Updating Thresholds

In revising thresholds in accordance with article 82 of the Law, the PPU may set
different thresholds for different types of Entities, including:
(a)

Ministries, Departments, Agencies;

(b)

State Owned Enterprises, Public Companies with Government Ownership; and

(c)

Local Governments.

(2)

The PPU may also set different thresholds for the central or head offices of Entities
and provincial, district or branch offices.

(3)

Where the PPU considers it appropriate, it may subdivide types of Entity into
categories and set different thresholds for each category.

(4)

Where different thresholds are set for different categories of Entity, the PPU shall
publish a list of the Entities in each category.

(5)

In allocating Entities to a category, the PPU shall take into account:

(a)

the need for each Entity to process its procurement in an efficient manner,
taking into account its procurement budget and workload;

(b)

the capacity of each Entity and its award authorities to manage its
procurement.

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Rule 185:
(1)

Special permission for application of thresholds for specific

procurement

Without revising the thresholds, prescribed for an Entity, in accordance with Rule
184, where justified to facilitate fast-track procurement, the PPU may accord special
permission to an Entity for any specific procurement on a case-by-case basis for
application of a higher threshold for the selected procurement method.

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ANNEX-1: MEASURES AND PROGRAMS TO PROMOTE THE PARTICIPATION OF

SMALL ENTERPRISES, RULE 4(1)
Article 1.
(1)

Measures and Programmes

In accordance with Rule 4(1), the PPU shall issue circulars on measures and
programmes for the promotion and facilitation of participation by small enterprises in
public procurement. Such measures and programmes may include, but shall not be
limited to:
(a)

encouraging large businesses to subcontract with small enterprises;

(b)

publishing indicative notices of planned procurement, particularly for high

value contracts which may include subcontracting opportunities;

(c)

where feasible and appropriate, dividing procurement requirements into lots,

of a size for which small enterprises are qualified and able to bid;

(d)

establishing small-enterprise set-asides;

(e)

promoting the use of standard documents in procurement and promoting

clarity, harmonization and transparency in such documents;

(f)

favouring commercially available approaches to technical requirements, which

widen competition;

(g)

facilitating access to third party security instruments such as bank

guarantees, stand-by letters of credit and surety bonds;

(h)

ensuring the prompt payment of invoices; and

(i)

avoiding excessive regulatory burdens.

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ANNEX-2: PROCEDURES FOR END USER AND COMMUNITY PARTICIPATION,

RULE 5(1)
Article 1:
(1)

Procedures for End User and Community Participation

In accordance with rule 5(1), the PPU may issue circulars on procedures for the
participation of the end user or beneficiary community in the delivery of goods,
works or services required. Such procedures shall be in accordance with the
principles in this Annex.

Article 2:

Application of Procedures

(1)

Procedures issued by the PPU shall clearly state the circumstances in which they can
be applied.

(2)

Procedures for end user and community participation shall normally only apply to
programmes:

(3)

(a)

which are labour intensive; and / or

(b)

where the participation of the end user or community is expected to enhance

the economy or quality of the goods, works or services or to promote
effective utilization of the goods, works or services.

Procedures for end user and community participation shall not normally be used
where:
(a)

the majority of the project will be implemented by a contractor; or

(b)

the implementation of the project by a contractor would offer better value for
money, taking into account economy, quality and the need to promote
effective utilization.

Article 3:
(1)

Agreement on End User or Community Participation

An agreement shall be signed between the procuring entity and the end user
community, defining:
(a)

the goods, works or services to be delivered;

(b)

the role of the community;

(c)

how the community is to be represented;

(d)

timescales for completion or delivery of the goods, works or services;

(e)

the reports to be submitted to the procuring entity by the Community

Participation Committee;

(f)

the budget for the goods, works or services, any funds to be paid to the
Community Participation Committee and how funding will be managed and
accounted for; and

(g)

responsibility and procedures for the procurement of any supplementary

goods, works or services required.

Article 4:

End User or Community Representation

(1)

The end user or beneficiary community shall be represented by a Community

Participation Committee.

(2)

The composition of the Committee shall be determined to ensure that it is fully

representative of the end user community and able to take into account policies and
initiatives of the Local Government or other applicable authority.

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(3)

Subject to the agreement between the procuring entity and the Community
Participation Committee, the committee shall normally be responsible for:
(a)

management and supervision of the communitys involvement;

(b)

reporting progress to the procuring entity;

(c)

accounting for any funds managed by the Community Participation

Committee;

(d)

the ongoing repair, maintenance, management and use of any goods, works
or services delivered; and

(e)

any other functions specified in the agreement between the procuring entity
and the Community Participation Committee.

Article 5:
(1)

The Entity shall:

(a)

ensure that realistic cost estimates are prepared for the project and that
sufficient funds are available;

(b)

monitor delivery of the goods, works or services by the Community

Participation Committee;

(c)

ensure that all funds used by the Community Participation Committee are
properly accounted for;

(d)

provide technical advice and assistance as required;

(e)

conduct final testing of the goods, works or services; and

(f)

perform any other functions specified in the agreement between the

procuring entity and the Community Participation Committee.

Article 6:
(1)

Role of the Entity

Procurement and Payments

Procedures issued by the PPU and/or the agreement entered into by the procuring
entity and the Community Participation Committee shall specify:
(a)

whether any necessary procurement or recruitment of staff will be

undertaken by the procuring entity or the community; and

(b)

the procedures to be followed for any procurement or recruitment.

(c)

Procurement procedures for end user community participation shall be

consistent with the principles of the Law and these Rules, but may be
modified to the extent required to make them suitable for end user
community participation.

(d)

Payments shall normally be made by the procuring entity, on the basis of

documentation provided by the Community Participation Committee.

(2)

Where it is necessary in order to facilitate the delivery of the goods, works or

services, the procuring entity may transfer funds to the Community Participation
Committee following signature of the agreement.

(3)

The Community Participation Committee shall maintain records of all procurement or

recruitment activities and all payments made.

(4)

Members of the Community Participation Committee shall be held responsible for any
misuse of funds.

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ANNEX-3: PRINCIPLES OF ENVIRONMENTAL PROTECTION IN PUBLIC

PROCUREMENT, RULE 6(1)
Article 1:
(1)

In accordance with Rule 6(1), the PPU shall issue circulars on measures and
programs to promote environmental protection in public procurement. Such
measures and programs shall be in accordance with the following objectives:
(a)

the improvement of the environment and mitigation of negative

environmental impact, by procurement of goods that require less resources
for production, involve reduced levels of toxins in their production and
composition and result in less waste and pollution over their lifetime;

(b)

the reduction of environment impact by procurement of goods that are more

durable and / or suitable for reuse and recycling;

(c)

the achievement of cost savings by procuring energy efficient goods and

technology;

(d)

the promotion of government environmental policies through procurement

practices that influence industry in the direction of conservation; and

(e)

compliance with applicable national and international rules concerning

environmental protection.

Article 2:
(1)

Objectives

Measures and Programmes

The measures and programs issued by the PPU to promote environmental protection
in public procurement may include, but shall not be limited to:
(a)

ensuring that the evaluation of bids takes into account whole lifecycle costs,
including operating and disposal costs;

(b)

including compliance with environmental protection regulations as a

qualification criteria;

(c)

including experience in providing environmentally sensitive solutions as a

qualification or evaluation criteria for appropriate cases, such as the
procurement of architect and engineering services;

(d)

incorporating environmentally sound materials and performance requirements

into specifications, in relation to such factors as the use of recycled and
recyclable materials, durability, energy and water efficiency, packaging
materials and disposal;

(e)

planning and setting targets for green procurement, based on a current

profile of items procured and an assessment of the availability of
environmentally friendly goods, works and services in Afghanistan;

(f)

the acquisition and dissemination of information to procuring entities on

green products, technologies and practices;

(g)

promoting the awareness of procurement staff of environmentally-related

international conventions to which Afghanistan is or may become party,
applicable national laws and regulations and how these may be integrated
into the procurement process;

(h)

dissemination of information to the private sector about applicable

environmental rules and how suppliers may be responsive to environmental
requirements in public procurement; and

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(i)

providing training in green procurement to procurement staff and the private

sector;

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ANNEX-4: PRINCIPLES FOR USE OF INFORMATION AND COMMUNICATIONS

TECHNOLOGY IN PUBLIC PROCUREMENT RULE 7(1)
Article 1:
(1)

In accordance with Rule 7(1), the PPU shall issue circulars on measures and
programs to introduce the use of information and communications technology in
public procurement. Such measures and programs shall be in accordance with the
following principles:
(a)

key aspects of information and communications systems for public

procurement shall be standardized throughout the public administration, so
as to facilitate compatibility, the sharing of information, the reduction of costs
and user training and familiarity for bidders;

(b)

systems shall, wherever possible, be technologically neutral and scaleable, to

enable them to take advantage of existing developments in information and
communications technology, while remaining open to future technological
developments; and

(c)

electronic systems shall, wherever possible, utilize open standards and

commercially developed and available software applications and hardware
and avoid the development of bespoke applications and systems, with a view
to limiting costs and facilitating the widest possible participation by bidders.

Article 2:
(1)

Principles

Measures and Programme

Principal elements in the information and communications technology used for public
procurement may include, but not be limited to(a)

a website for the dissemination of information on public procurement in

Afghanistan;

(b)

systems to facilitate easy access to standard documents;

(c)

use of e-mail for certain types of communications;

(d)

automated linkages between procurement systems and other relevant

systems, such as supply management systems, financial systems and
payment systems;

(e)

electronic bidder registration systems;

(f)

facilities for electronic procurement, such as the use of purchase cards for
small purchases, and electronic catalogue shopping for standard goods;

(g)

systems for electronic payment, including the electronic issuance of invoices

and the automatic generation of payment upon report of the receipt of the
procured object;

(h)

appropriate security to prevent unauthorized access to systems;

(i)

accurate retrieval or conversion of electronic forms of information into a

medium which permits inspection and copying.

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ANNEX-5: SPECIAL PROCEDURES FOR DESIGN CONTESTS RULE 39(2)

SECTION-I : GENERAL PROVISIONS
Article 1:

Scope and Purpose

(1)

The purpose of this Annex is to establish detailed rules and procedures related to the
conduct of design contests, with a view to fulfilling the objectives and implementing
the provisions of the Law.

(2)

For the purposes of this Annex, design contests means those procedures that
enable the procuring entity to acquire, mainly in the fields of area planning, town
planning, architecture and engineering or data processing, a plan or design selected
by a jury after being put out to competition with or without the award of prizes.

(3)

Procuring entities may conduct design contests, with or without prizes, to acquire the
required plans and projects relating to architecture, landscaping, engineering, urban
design projects, urban and regional planning, and fine arts.

(4)

The rules for the organization of a design contest shall be in conformity with the
requirements of this Annex and shall be consistent with the Law and these Rules.

Article 2:
(1)

Valuation of design contests

For the purposes of valuation of design contests and the application to design
contests of monetary thresholds in the Law and other applicable legislation:
(a)

in case of design contests organized as part of a procedure leading to the

award of a contract for consultants services, the estimated value inclusive of
taxes of the services shall be used;

(b)

in case of design contests with prizes, all contest awards and other amounts
payable to the participants in the design contest shall be used.

SECTION-II : DESIGN CONTEST JURY

Article 3:

Establishment of jury

(1)

The designs submitted by contestants shall be evaluated by a jury composed

exclusively of members who are natural persons and are independent from the
participants in the contest.

(2)

The jury shall be established prior to the opening of the contest.

The members of the jury shall be appointed and dismissed by the procuring entity.

Article 4:
(1)

Composition of jury

If certain professional qualifications are required from participants in a design

contest, at least one-third of the members of the jury of the contest must have the
same or similar qualifications.

Article 5:

Jury procedures

(1)

At its first meeting, the jury shall elect a chairman and a secretary.

(2)

The decisions of the jury shall be taken by a majority vote, with a separate vote on
each design. If the vote is equally divided, the chairman shall have the decisive vote.
All decisions of the jury shall be final, subject to Article 27 of this Annex.

(3)

A report of the meetings, including explanations of the decisions of the jury with
respect to each plan or design submitted, shall be drawn up by the secretary and
signed by the chairman and all members of the jury.

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(4)

The report shall be made public.

SECTION-III : PARTICIPATION IN DESIGN CONTESTS

Article 6:

Contest notice

(1)

Procuring entities who wish to carry out a design contest shall make known their
intention by means of a contest notice.

(2)

In addition to publication in accordance with Rule 50, the notice shall be published in
technical journals and reviews relevant to the subject matter of the design contest.

(3)

Notices of design contests shall be published not less than thirty days prior to the
date for the receipt of designs.

Article 7:
(1)

The design contest notice shall contain at least the following information:
(a)

The name, address, fax number and electronic address of the procuring
entity and, if different, of the organization from which additional information
may be obtained;

(b)

The project description, including the subject and characteristics of the

design contest;

(c)

The requirements for participation in the design contest, including any

qualification criteria and proof of compliance therewith to be submitted by
participants;

(d)

The nature of the contest, which may be open or restricted;

(e)

In the case of open contests, the final date for receipt of plans or designs;

(f)

In the case of restricted contests:

(i)
The number of participants envisaged;
(ii)

Where applicable, the names of participants already selected;

(iii)

The criteria for the selection of participants;

(iv)

The final date for receipt of requests to participate;

(g)

Where applicable, an indication of whether participation is reserved to a

particular profession;

(h)

The criteria to be applied in the evaluation of plans and designs;

(i)

The place from which and the manner in which candidates may obtain the
contest documents, including the deposit, if any, to be paid for the
documents;

(j)

The names of the members of the jury;

(k)

An indication of whether the prize winners are permitted any follow-up

contracts;

(l)

Where applicable, the number and value of prizes; and

(m)

Where applicable, details of payments to all participants.

Article 8:
(1)

Contents of contest notice

Extent of participation

Where design contests are restricted to a limited number of participants, the

procuring entity shall state in the notice clear and non-discriminatory selection

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criteria. The procuring entity may restrict participation only on the basis of those
criteria.
(2)

In any event, the number of candidates invited to participate shall be sufficient to

ensure genuine competition.

Article 9:

Subvention of participation

(1)

In restricted competitions, provision may be made for payment of a certain sum to

each of the participants invited to take part, without prejudice to the regular award
of prizes.

(2)

In contests consisting of two stages, a reasonable sum may be paid to all

participants admitted to the final contest. The sum is distinct from the prizes
awarded upon the conclusion of the final contest.

Article 10:
(1)

Non-discrimination

The conditions and contest documents of a contest shall be identical for all
participants.

SECTION-IV : CONTEST DOCUMENTS

Article 11:
(1)

The procuring entity shall supply participants with all the documentation necessary
for drawing up their designs. If there is a deposit to be paid for the documentation,
the deposit shall be refunded to the candidates that participate in the contest.

Article 12:
(1)

Provision of contest documents

Contents of contest documents

In addition to restating the information contained in the design contest notice

referred in Article 7 of this Annex, the contest documents shall contain the following:
(a)

The detailed nature of the problem;

(b)

The actual conditions to be fulfilled in the preparation of the design;

(c)

The number, nature, scale and dimensions of the documents or models

required in two or three dimensions;

(d)

The conditions of receipt, acceptance and return of such documents or

models;

(e)

The requirements as to data to be supplied by participants so as to enable

the costs of execution of designs to be estimated in accordance with uniform
standards;

(f)

The method of allocation of prizes;

(g)

Whether the prize is to be the sole remuneration received by the prizewinner;

(h)

The exact use to which the procuring entity intends to put the prize-winning
design;

(i)

The point in time when execution of the design is expected to commence;

(j)

The date of the public exhibition of the designs submitted in the contest; and

(k)

The name, title and contact details of one or more officers of the procuring
entity who are authorised to communicate directly with and to receive
communications directly from participants in connection with the procurement
proceedings, without the intervention of an intermediary.

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(2)

A clear distinction shall be made in the contest documents between conditions that
are compulsory and those that leave participants freedom in interpretation, which
should be as wide as possible.

(3)

The contest documents shall indicate that, in principle, the procuring entity shall use
the metre as the scale for designs and plans. In cases where this is not done, a
metric equivalent shall be given in the contest documents.

(4)

The procuring entity shall endeavour to reduce to a minimum, in all cases, the
number and size of the documents and drawings required to be submitted.

(5)

The procuring entity shall give, on an equal basis, to all participants in the second
stage of a two-stage contest all of the supplementary information necessary for
drawing up designs and plans to be submitted in the second stage.

Article 13:
(1)

Registration and admission of participants

Upon obtaining the contest documents, candidates intending to participate in the

contest shall register their intent with the procuring entity. Registration implies
acceptance of the conditions of the competition.

SECTION-V : SUBMISSION AND EVALUATION OF DESIGNS AND PLANS

Article 14:
(1)

Submission of designs and plans

The designs and plans submitted by participants for consideration by the jury shall
be presented to the procuring entity for transmission to the jury in such a manner as
to ensure their anonymity before and during the evaluation, comparison and award
stages.

Article 15:

One or two stage contests

(1)

Contests may be held in one or two stages.

(2)

In contests that consist of two stages, only those competitors who are successful in
the first part shall be admitted to the final contest.

(3)

Designs and plans submitted in the first stage shall be kept confidential until the
results of the second stage have been announced.

(4)

The list of participants admitted to the final contest shall be drawn up and published
in alphabetical order.

(5)

Participants admitted to the second stage of contests shall receive from the
procuring entity all the supplementary information necessary for drawing up designs
and plans to be entered in the final contest.

Article 16:

Evaluation and comparison of designs

(1)

Decisions and opinions concerning the designs and plans shall be made only on the
basis of the criteria and conditions set forth in the notice announcing the design
contest and in the contest documents.

(2)

All drawings, photographs, models or documents other than those specified in the
program shall be excluded from consideration, and shall be eliminated before
examination of the plan.

(3)

The jury shall disqualify any plan not in conformity with the conditions set forth in
the contest documents.

Article 17:

Selection of the winning design

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(1)

The winning design or plan shall be selected exclusively on the basis of criteria and
conditions set forth in the contest notice and documents.

Article 18:

Notice of results

(1)

Procuring entities shall publish a notice of the results of the award procedure and
send a copy of the notice directly to all participants.

(2)

The notice referred to in paragraph 0 shall contain the following information:

(3)

(a)

Name, address, fax number and electronic address of the procuring entity;

(b)

Project description;

(c)

Number of participants;

(d)

Winner(s) of the contest;

(e)

Where applicable, the prizes;

(f)

Reference number of the design contest notice;

(g)

Date of publication of the notice.

The notice shall be published in the same publications utilized for publication of the
design contest notice.

SECTION-VI : ALLOCATION OF PRIZES, AWARDS AND COMPENSATION

Article 19:
(1)

The amount of the prizes shall be proportional to the size of the project, the work
involved and the expenses incurred by participants.

Article 20:
(1)

Amount of prizes

Distribution of prizes

Prizes shall be distributed within 30 days of the announcement of the results of the
contest, unless otherwise specified in the contest documents.

Article 21:

Use of designs

(1)

The winning design may not be put to any use other than that expressly stated in
the contest documents. No other design, whether or not it is awarded a prize, may
be used in whole or in part by the procuring entity except by special agreement with
the respective participant.

(2)

In cases where the procuring entity wishes to use a prize-winning design for other
purposes, or to modify it, a fresh agreement to that effect shall be concluded
between the procuring entity and the author of the design or plan.

Article 22:

Copyright and ownership issues

(1)

The author of any design shall retain the artistic copyright in his work and no
alterations may be made without his written consent.

(2)

The design winning the first prize shall become the property of the procuring entity.

(3)

Unless otherwise specified in the contest documents, the procuring entitys

ownership in the winning design shall cover only one execution thereof.

(4)

Unless otherwise specified in the contest documents, the author of any design shall
retain the right of reproduction.

SECTION-VII : MISCELLANEOUS PROVISIONS

Article 23:

Exhibition of designs

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(1)

Following the conclusion of the deliberations of the jury, the designs submitted in the
contest shall be publicly exhibited. In addition to the designs themselves, all
documents and drawings, as well as the report and decisions of the jury bearing the
signatures of the chairman and of all members shall be exhibited.

(2)

The procuring entity shall notify the participants at least seven days prior to the date
of the exhibition of the date and place of the exhibition. The procuring entity shall
also arrange for the publication of the date and place of the exhibition in the same
publications in which the design contest notice was published.

Article 24:

Standards of conduct

(1)

The members of the jury shall undertake not to be guided in their work by any
consideration other than their own conscience, the interests of the contest and the
public interest.

(2)

No member of the jury shall take part, either directly or indirectly, in the contest, nor
be entrusted, either directly or indirectly, with work connected with the execution of
the winning design.

(3)

The communication and information exchange involved in design contests shall be

carried out in such a way as to ensure that the integrity and confidentiality of all
information supplied by participants are preserved, and that the content of plans and
designs may only be examined, by the jury, after the time-limit set for submitting
those has expired.

(4)

In their conduct, the members of the jury and participants in the contest are subject
to the conduct and ethics principles set forth in the Law and these Rules.

Article 25:

Cancellation of contest

(1)

The procuring entity retains the right to cancel the contest at any stage prior to the
announcement of a winning design. In the event of a cancellation, the procuring
entity shall refrain from the utilization of any designs that have been submitted.

(2)

In the event of the cancellation of a contest for which participants have been
officially registered, the procuring entity may compensate the participants for work
actually carried out in connection therewith, in accordance with conditions set forth
in the contest documents.

Article 26:
(1)

Record of the contest

The procuring entity shall prepare a record of the design contest containing at least
the following information:
(a)

the name, address and other contact details of the procuring entity;

(b)

the subject and characteristics of the design contest;

(c)

the names and addresses of the participants in the design contest;

(d)

the name and address of the person who submitted the award-winning
design;

(e)

information concerning the qualifications required of the participants in the

design contest or confirming the lack thereof;

(f)

the total value of the design contest awards and other amounts payable to
the participants in the contest;

(g)

a summary of the evaluation and comparison of the designs or plans; and

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(h)

Article 27:
(1)

the report of the jury, signed by the chairman and the members,
summarizing and explaining the deliberations and decisions of the jury with
respect to the evaluation and comparison of the designs submitted in the
contest, and stating the grounds for the selection of the winning design.
Review

Chapter VII of the Law shall apply to the resolution of complaints from participants
concerning the conduct of design contests.

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ANNEX-6: SPECIAL PROCEDURES FOR PROCUREMENT OF INFRASTRUCTURE ON

THE BASIS OF PRIVATE FINANCING AND FOR THE AWARD OF CONCESSIONS
RULE 40(1)
SECTION-A : Rules Governing the Procurement Proceedings
Article 1:
(1)

Applicable Law & Rules

The selection of the contractor shall be conducted in accordance with the Law and
these Rules, subject to the provisions of this annex.

SECTION-B : Pre-Qualification of Bidders

Article 2:

Purpose and procedure of pre-qualification

(1)

The procuring entity shall engage in pre-qualification proceedings with a view to

identifying bidders that are suitably qualified to implement the envisaged project.
The invitation to participate in the pre-qualification proceedings shall be published in
accordance with Rule 50.

(2)

The invitation to participate in the pre-qualification proceedings shall include at least

the following:

(3)

(a)

A description of the infrastructure facility;

(b)

An indication of other essential elements of the project, such as the services

to be delivered by the contractor, the financial arrangements envisaged by
the procuring entity (for example, whether the project will be entirely
financed by user fees or tariffs or whether public funds such as direct
payments, loans or guarantees may be provided to the contractor);

(c)

Where already known, a summary of the main required terms of the contract
to be entered into;

(d)

The manner and place for the submission of applications for pre-qualification
and the deadline for the submission, expressed as a specific date and time,
allowing sufficient time for bidders to prepare and submit their applications;
and

(e)

The manner and place for obtaining the pre-qualification documents.

To the extent not already required by Article 18(2) of the Law, the pre-qualification
documents shall include at least the following information:
(a)

The pre-qualification criteria in accordance with section B-3 of this annex;

(b)

Whether the procuring entity intends to waive the limitations on the

participation of consortia set forth in section B Article 4 of this annex;

(c)

Whether the procuring entity intends to request only a limited number of prequalified bidders to submit proposals upon completion of the pre-qualification
proceedings in accordance with section B Article 5 of this Annex, and, if
applicable, the manner in which this selection will be carried out;

(d)

Whether the procuring entity intends to require the successful bidder to

establish an independent legal entity established and incorporated under the
laws of Afghanistan.

Article 3:
(1)

Pre-qualification criteria

In order to be pre-qualified, interested bidders must meet objectively justifiable

criteria that the procuring entity considers appropriate in the particular proceedings,

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as stated in the pre-qualification documents. Those criteria shall be confined to the

types of eligibility and qualification criteria permitted by the Law and these Rules,
and shall include the following:
(a)

Adequate professional and technical qualifications, human resources,

equipment and other physical facilities as necessary to carry out all the
phases of the project, including design, construction, operation and
maintenance;

(b)

Sufficient ability to manage the financial aspects of the project and capability
to sustain its financing requirements; and

(c)

Appropriate managerial and organizational capability, reliability and

experience, including previous experience in operating similar infrastructure
facilities.

Article 4:

Participation of consortia

(1)

The procuring entity, when first inviting the participation of bidders in the
procurement proceedings, shall allow them to form bidding consortia. The
information required from members of bidding consortia to demonstrate their
qualifications in accordance with section B Article 2 of this Annex shall relate to the
consortium as a whole as well as to its individual participants.

(2)

Unless otherwise stated in the pre-qualification documents, each member of a

consortium may participate, either directly or indirectly, in only one consortium at the
same time. A violation of this rule shall cause the disqualification of the consortium
and of the individual members.

(3)

When considering the qualifications of bidding consortia, the procuring entity shall
consider the capabilities of each of the consortium members and assess whether the
combined qualifications of the consortium members are adequate to meet the needs
of all phases of the project.

Article 5:
(1)

(2)

Shortlist

The procuring entity may invite proposals from either:

(a)

all bidders who meet the pre-qualification criteria; or

(b)

a limited number of bidders who meet the pre-qualification criteria.

Where the procuring entity invites proposals from only a limited number of bidders, it
shall rate the bidders that meet the pre-qualification criteria and select the bidders
that best meet the pre-qualification criteria. The rating shall be based on the prequalification criteria and the manner of rating the bidders shall be stated in the prequalification documents.

SECTION-C : Procedure for requesting and evaluating proposals

Article 6:

Single-stage and two-stage procedures for requesting proposals

(1)

The procuring entity shall provide the Request for Proposals and related documents,
drafted in accordance with section C Article 6 of this Annex, to each pre-qualified
bidder that pays the price, if applicable, charged for those documents.

(2)

Notwithstanding the above, the procuring entity may use a two-stage procedure to
request proposals from pre-qualified bidders when the procuring entity does not
deem it to be feasible to describe in the request for proposals the characteristics of
the project such as project specifications, performance indicators, financial

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arrangements or contractual terms in a manner sufficiently detailed and precise to

permit final proposals to be formulated.
(3)

Where a two-stage procedure is used, the following provisions apply:

(a)

The initial request for proposals shall call upon the bidders to submit, in the
first stage of the procedure, initial proposals relating to project specifications,
performance indicators, financing requirements or other characteristics of the
project as well as to the main contractual terms proposed by the procuring
entity;

(b)

The procuring entity may convene meetings and hold discussions with any of
the bidders to clarify questions concerning the initial request for proposals or
the initial proposals and accompanying documents submitted by the bidders.
The procuring entity shall prepare minutes of any such meeting or discussion
containing the questions raised and the clarifications provided by the
procuring entity;

(c)

Following examination of the proposals received, the procuring entity may

review and revise the initial request for proposals by adding, deleting or
modifying any aspect of the initial project specifications, performance
indicators, financing requirements or other characteristics of the project,
including the main contractual terms, and any criterion for evaluating and
comparing proposals and for ascertaining the successful bidder. The
procuring entity shall indicate in the record of the procurement proceedings
the justification for any revision to the request for proposals. Any such
deletion, modification or addition shall be communicated in the invitation to
submit final proposals;

(d)

In the second stage of the proceedings, the procuring entity shall invite the
bidders to submit final proposals with respect to a single set of project
specifications, performance indicators or contractual terms.

Article 7:
(1)

To the extent not already required by Rule 85, the request for proposals shall include
at least the following information:
(a)

General information as may be required by the bidders in order to prepare

and submit their proposals;

(b)

Project specifications and performance indicators, as appropriate, including

the procuring entitys requirements regarding safety and security standards
and environmental protection;

(c)

The contractual terms proposed by the procuring entity, including an

indication of which terms are deemed to be non-negotiable;

(d)

The criteria for evaluating proposals and the thresholds, if any, set by the
procuring entity for identifying non-responsive proposals; the relative weight
to be accorded to each evaluation criterion; and the manner in which the
criteria and thresholds are to be applied in the evaluation and rejection of
proposals.

Article 8:
(1)

Content of the request for proposals

Bid securities

The request for proposals shall set forth the requirements with respect to the issuer
and the nature, form, amount and other principal terms and conditions of any
required bid security.

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(2)

A bidder shall not forfeit any bid security that it may have been required to provide,
other than in cases referred to in Article 42(2) of Law, and in case of
(a)

Failure to enter into final negotiations with the procuring entity pursuant to
section C Article 11 of this Annex;

(b)

Failure to submit its best and final offer within the time limit prescribed by the
procuring entity pursuant to section C Article 11(2) of this Annex;

(c)

Failure to provide required security for the fulfilment of the contract after the
proposal has been accepted or to comply with any other condition prior to
signing the contract specified in the request for proposals.

Article 9:
(1)

(2)

Evaluation criteria

The criteria for the evaluation and comparison of the technical proposals shall include
at least the following(a)

Technical soundness;

(b)

Compliance with environmental standards;

(c)

Operational feasibility;

(d)

Quality of services and measures to ensure their continuity.

The criteria for the evaluation and comparison of the financial and commercial
proposals shall include, as appropriate:
(a)

The present value of the proposed tolls, unit prices and other charges over
the operational period;

(b)

The present value of the proposed direct payments by the procuring entity, if
any;

(c)

The costs for design and construction activities, annual operation and
maintenance costs, present value of capital costs and operating and
maintenance costs;

(d)

The extent of financial support, if any, expected from any public authority of
Afghanistan;

(e)

The soundness of the proposed financial arrangements;

(f)

The extent of acceptance of the negotiable contractual terms proposed by the

procuring entity in the request for proposals; and

(g)

The social and economic development potential offered by the proposals.

Article 10:

Comparison and evaluation of proposals

(1)

The procuring entity shall compare and evaluate each proposal in accordance with
the evaluation criteria, the relative weight accorded to each such criterion and the
evaluation process set forth in the request for proposals.

(2)

For the purposes of paragraph (1), the procuring entity may establish thresholds
with respect to quality, technical, financial and commercial aspects. Proposals that
fail to achieve the thresholds shall be regarded as non-responsive and rejected from
the procurement proceeding.

Article 11:
(1)

Final negotiations

The procuring entity shall rank all responsive proposals on the basis of the evaluation
criteria and invite the bidder that has attained the highest ranking for final

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negotiation of the procurement contract. Final negotiations shall not concern those
contractual terms, if any, that were stated as non-negotiable in the final request for
proposals.
(2)

If it becomes apparent to the procuring entity that the negotiations with the bidder
invited will not result in a contract, the procuring entity shall inform the bidder of its
intention to terminate the negotiations and give the bidder reasonable time to
formulate its best and final offer. If the procuring entity does not find that proposal
acceptable, it shall terminate the negotiations with the bidder concerned. The
procuring entity shall then invite for negotiations the other bidders in the order of
their ranking until it arrives at a procurement contract or rejects all remaining
proposals. The procuring entity shall not resume negotiations with a bidder with
whom negotiations have been terminated pursuant to this paragraph.

SECTION-D : Negotiation of contracts without competitive procedures

Article 12:
(1)

The procuring entity may negotiate a procurement contract without using the
procedures set forth in sections B and C of this Annex where:
(a)

there is an urgent need for ensuring continuity in the provision of the service
and engaging in the procedures set forth in sections B and C of this Annex
would be impractical, provided that the circumstances giving rise to the
urgency were neither foreseeable by the procuring entity nor the result of
dilatory conduct on its part; or

(b)

the project is of short duration and the anticipated initial investment value
does not exceed the amount set by the PPU by circular; or

(c)

Where there is only one source capable of providing the required service,
such as when the provision of the service requires the use of intellectual
property, trade secrets or other exclusive rights owned or possessed by a
certain person or persons; or

(d)

In cases of unsolicited proposals falling under section E of this Annex; or

(e)

When an invitation to the pre-qualification proceedings or a request for

proposals has been issued but no applications or proposals were submitted or
all proposals failed to meet the evaluation criteria set forth in the request for
proposals and if, in the judgement of the procuring entity, issuing a new
invitation to the pre-qualification proceedings and a new request for
proposals would be unlikely to result in a project award within a required time
frame.

Article 13:
(1)

Circumstances authorizing award without competitive procedures

Procedures for negotiation of a contract without competitive

procedures

Where a procurement contract is negotiated without using the procedures set forth
in sections B and C of this Annex, the procuring entity shall cause a notice of its
intention to commence negotiations in respect of a contract to be published in
accordance with Rule 50.

SECTION-E : Unsolicited proposals

Article 14:
(1)

Admissibility of unsolicited proposals

As an exception to sections B and C of this Annex, the procuring entity may consider
unsolicited proposals pursuant to the procedures set forth in section E of this Annex,

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provided that such proposals do not relate to a project for which procurement
procedures have been initiated or announced.
Article 15:

Procedures
proposals

for

determining

the

admissibility

of

unsolicited

(1)

Following receipt and preliminary examination of an unsolicited proposal, the

procuring entity shall promptly inform the proponent whether or not the project is
considered to be potentially in the public interest, taking into account factors
including the appropriateness of the contractual arrangements and the
reasonableness of the proposed project risks.

(2)

If the project is considered to be potentially in the public interest, the procuring

entity shall invite the proponent to submit as much information on the proposed
project as is feasible at this stage to allow the procuring entity to make a proper
evaluation of the proponents qualifications, the technical and economic feasibility of
the project and to determine whether the project is likely to be successfully
implemented in the manner proposed in terms acceptable to the procuring entity.
For this purpose, the proponent shall submit a technical and economic feasibility
study, an environmental impact study and satisfactory information regarding the
concept or technology contemplated in the proposal.

(3)

In considering an unsolicited proposal, the procuring entity shall respect the

intellectual property, trade secrets or other exclusive rights contained in, arising from
or referred to in the proposal. The procuring entity shall not make use of information
provided by or on behalf of the proponent in connection with its unsolicited proposal
other than for the evaluation of that proposal, except with the consent of the
proponent. Except as otherwise agreed by the parties, the procuring entity shall, if
the proposal is rejected, return to the proponent the original and any copies of
documents that the proponent submitted.

Article 16:
(1)

(2)

Except in the circumstances set forth in section D Article 12 of this Annex, the
procuring entity shall, if it decides to implement the project, initiate a procurement
proceeding in accordance with sections B and C of this Annex if the procuring entity
considers that:
(a)

The envisaged output of the project can be achieved without the use of
intellectual property, trade secrets or other exclusive rights owned or
possessed by the proponent; and

(b)

The proposed concept or technology is not truly unique or new.

The proponent shall be invited to participate in the procurement proceedings

initiated by the procuring entity pursuant to paragraph (1) and may be given an
incentive or a similar benefit in a manner described by the procuring entity in the
request for proposals in consideration for the development and submission of the
proposal.

Article 17:
(1)

Unsolicited proposals that do not involve intellectual property, trade

secrets or other exclusive rights

Unsolicited proposals involving intellectual property, trade secrets

or other exclusive rights

If the procuring entity determines that the conditions of section E Article 16(1) of this
Annex are not met, it shall not be required to carry out a procurement procedure
pursuant to sections B and C of this Annex. However, the procuring entity may still

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seek to obtain elements of comparison for the unsolicited proposal in accordance

with the provisions set out in paragraphs (2) to (4) below.
(2)

Where the procuring entity intends to obtain elements of comparison for the
unsolicited proposal, the procuring entity shall publish a description of the essential
output elements of the proposal with an invitation for other interested parties to
submit proposals by a specified deadline.

(3)

If no proposals are received, the procuring entity may engage in negotiations with
the original proponent.

(4)

If the procuring entity receives proposals in response to an invitation issued pursuant

to paragraph (2), the procuring entity shall invite the proponents to negotiations. In
the event that the procuring entity receives a sufficiently large number of proposals,
which appear prima facie to meet its infrastructure needs, the procuring entity shall
request the submission of proposals pursuant to section C of this Annex, subject to
any incentive or other benefit that may be given to the person who submitted the
unsolicited proposal in accordance with section E Article 16(2) of this Annex.

SECTION-F : Miscellaneous provisions

Article 18:
(1)

The procuring entity shall treat proposals in such a manner as to avoid the disclosure
of their content to competing bidders. Any discussions, communications and
negotiations between the procuring entity and a bidder shall be confidential. Unless
required by law or by a court order or permitted by the request for proposals, no
party to the negotiations shall disclose to any other person any technical, price or
other information in relation to discussions, communications and negotiations
without the consent of the other party.

Article 19:
(1)

Confidentiality

Notice of contract award

The procuring entity shall publish notices of the proposed award and contract award
in accordance with Rule 123.

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