The Public Procurement
(Amendment) Act 2016
(Act 914 )
ARRANGEMENT OF SECTIONS
Section
1.Section
2 of Act 663 amended
2.Section
3 of Act 663 amended
3.Section
4 of Act 663 amended
4.Section
10 of Act 663 amended
5.Section
13 of Act 663 amended
6.Part
Two of Act 663 amended
7.Section
21 of Act 663 amended
8.Section
22 of Act 663 amended
9.Section
22A of Act 663 inserted
10.Section
26 of Act 663 amended
11.Section
28 of Act 663 amended
12.Section
28A of Act 663 inserted
13.Section
31 of Act 663 amended
14.Section
32A of Act 663 inserted
15.Section
33 of Act 663 amended
16.Section
34A of Act 663 inserted
17.Section
38 of Act 663 amended
18.Section
40 of Act 663 amended
19.Section
42 of Act 663 amended
20.Section
43 of Act 663 amended
21.Section
44 of Act 663 amended
22.Section
47 of Act 663 amended
23.Section
49 of Act 663 amended
24.Section
50 of Act 663 amended
25.Section
53 of Act 663 amended
26.Section
54 of Act 663 amended
27.Section
57 of Act 663 amended
28.Section
58 of Act 663 amended
29.Section
59 of Act 663 amended
30.Section
60 of Act 663 amended
31.Section
64 of Act 663 amended
32.Section
66 of Act 663 amended
33.Section
68 of Act 663 amended
34.Section
69 of Act 663 amended
35.Section
72 of Act 663 amended
36.Section
74 of Act 663 amended
37.Section
77 of Act 663 amended
38.Heading
of Part Seven of Act 663 amended
39.Section
78 of Act 663 amended
40.Section
79 of Act 663 amended
41.Section
80 of Act 663 amended
42.Section
82 of Act 663 amended
43.Heading
of Part Eight of Act 663 amended
44.Section
83 of Act 663 amended
45.Section
83A of Act 663 inserted
46.Section
85 of Act 663 amended
47.Section
86 of Act 663 amended
48.Section
87 of Act 663 amended
49.Section
89 of Act 663 amended
50.Section
90 of Act 663 amended
51.Section
92 of Act 663 amended
52.Section
94 of Act 663 amended
53.Section
95 of Act 663 amended
54.Section
96 of Act 663 amended
55.Section
97 of Act 663 amended
56.Section
98 of Act 663 amended
57.Section
99 of Act 663 amended
58.Schedules
to Act 663 amended
Act 914
REPUBLIC OF GHANA
THE NINE HUNDRED AND FOURTEENTH
ACT
OF THE PARLIAMENT OF THE
REPUBLIC OF GHANA
ENTITLED
THE PUBLIC PROCUREMENT
(AMENDMENT) ACT, 2016 (ACT 914)
AN ACT to amend the Public
Procurement Act, 2003 (Act 663),
to make further provision for
public procurement, re-enact
Part Two of the Act, provide for
decentralised procurement and
for connected purposes.
DATE OF ASSENT:
11th May, 2016.
PASSED by Parliament and
assented to by the President:
Section 2 of Act 663 amended
1. Section 2 of the Public
Procurement Act, 2003 (Act 663)
referred to in this Act as the
principal enactment is amended
by the insertion of
"environmentally and socially
sustainable" after
"non-discriminatory."
Section 3 of Act 663 amended
2. Section 3 of the principal
enactment is amended by
(a)
the deletion of "draft" in
paragraph (c);
(b)
the substitution for "a monthly"
in paragraph (g) of "by
the end of each month a";
(c)
the insertion of "to the Board"
after "proposals" in paragraph
(h);
(d)
the insertion of "including
Metropolitan, Municipal and
District Assemblies after "
Government" in paragraph (l);
and
(e)
the insertion of "complaints
and" before" administrative
review" in paragraph (m).
Section 4 of Act 663 amended
3.
The principal enactment is
amended by the substitution for
section 4 of
"Governing body of the Authority
4. (1) The governing body of the
Authority is a Board consisting
of nine persons
(a)
a person competent and
experienced in public
procurement, as the chairperson;
(b)
four persons from the public
sector made up of one
representative of the Attorney
General and three other persons
nominated by the Minister, one
of whom is a woman and each of
whom is a person who has
experience in public procurement
and is familiar with
governmental and multilateral
agency procurement procedures;
(c)
three persons from the private
sector who have experience in
procurement, at least one of
whom is a woman; and
(d)
the chief executive officer of
the Authority.
(2) The vice chairperson shall
be elected by members from among
their number.
(3) The members of the Board
shall be appointed by the
President in accordance with
article 70 of the Constitution.
(4) The Board shall ensure the
proper and effective performance
of the functions of the
Authority.".
Section 10 of Act 663 amended
4.
The principal enactment is
amended by the substitution for
section 10 of
"Funds of the Authority
10. (1) The funds of the
Authority include
(a)
moneys provided by Parliament;
(b)
administrative fines, fees and
other income accruing to the
Authority in the performance of
its functions;
(c)
donations, grants and gifts; and
(d)
any other moneys provided by the
Minister. (2) The Minister may,
by legislative instrument, make
provision for the Authority to
retain part or all of its
internally generated funds for
specified purposes." .
Section 13 of Act 663 amended
5.
Section 13 of the principal
enactment is amended by the
insertion of a new subsection
(3)
"(3) The part of the annual
report concerning a
Metropolitan, Municipal or a
District Assembly and the
relevant part of the audited
accounts, together with relevant
parts of the Auditor-General's
Report affecting specific
Metropolitan, Municipal or
District Assemblies shall be
submitted to that Metropolitan,
Municipal or District Assembly
for debate.".
Part Two of Act 663 amended
6.
The principal enactment is
amended by the substitution for
Part Two of
"PART TWO
Procurement Structures
Scope and application
14.
(1) This Act applies to
(a)
the procurement of goods, works
and services, financed in whole
or in part from public
funds;
(b)
functions that pertain to the
procurement of goods, works and
services including the
description of requirements and
sources of supply, selection and
award of contracts and
the phases of contract
administration;
(c)
the disposal of public stores,
vehicles and equipment; and
(d)
procurement with public funds
including loans procured by
government,
grants, foreign aid funds and
internally generated funds
except as exempted under section
96.
(2) In addition to subsection
(1), this Act applies to
(a)
central management agencies;
(b)
ministries, departments and
agencies;
(c)
subvented agencies;
(d)
governance institutions;
(e)
state owned enterprises to the
extent that they utilise public
funds;
(f)
public universities, public
schools, colleges and hospitals;
(g)
the Bank of Ghana and financial
insti- tutions including public
trusts, pension
funds, insurance companies and
building societies which are
wholly owned by the
Republic or in which the
Republic has a majority
interest;
(h)
institutions established by
Government for the general
welfare of the public or
community;
(i)
statutory funds, Commissions and
other bodies established by
Government for a special
purpose; and
(j)
the phases of contract
administration as specified in
the Contract Administration
Manuals.
(3) The Contract Administrator
shall
(a)
manage the obligations and
duties of the procurement entity
specified in the
contract; and
(b)
ensure that the supplier or
contractor performs the contract
in accordance
with its terms and conditions.
(4) The Board may recommend to
the Minister, new procurement
methods where the context
requires.
(5) A procurement entity in
conducting procurement, shall be
guided by further procedures
specified in manuals, regulatory
notices and guidelines issued by
the Board.
Declaration of procurement
entity
15.
(1) The Minister in consultation
with the Board may, by notice in
the Gazette, declare an
entity, a subsidiary or agency
of an entity or a person to be a
procurement entity.
(2) Subject to approval by the
Board, a procurement entity may
undertake procurement in
accordance with established
commercial practices if
(a)
the procurement entity is
legally and financially
autonomous and operates under
commercial law;
(b)
it is beyond contention that
public procurement procedures
are not suitable, considering
the strategic nature of the
procurement; and
(c)
the proposed procurement method
will ensure value for money,
provide competition and
transparency to the extent
possible.
(3) The approval given by the
Board to a procurement entity to
undertake procurement in
accordance with established
commercial practices shall be
published in the Gazette.
Procurement entity
16.
(1) A procurement entity is
responsible for procurement,
subject to this Act and any
other conditions that may be
established in Regulations and
administrative instructions
issued by the Minister in
consultation with the Board.
(2) Procurement decisions of an
entity shall be taken in a
corporate manner and the
internal units concerned shall
contribute to the
decision-making process.
Head of procurement entity
17.
(1) The head of entity and an
officer to whom responsibility
is delegated are responsible and
accountable for action taken and
for instructions as regards the
implementation of this Act.
(2) The liability of the head of
entity or officer to Nl10m
responsibility is delegated is
however limited to acts that are
inconsistent with his Act.
Functions of the head of a
procurement entity
18.
(1) The head of entity shall
ensure that provisions of this
Act are complied with.
(2) The concurrent approval by a
tender review committee shall
not absolve the head of entity
from accountability for a
contract that may be determined
to have been procured in a
manner that is inconsistent with
a provision of this Act.
(3) The head of entity shall
(a)
establish within the procurement
entity, a procurement unit,
staffed with qualified
procurement personnel;
(b)
empanel competent and qualified
evaluation panels;
(c)
ensure that at each stage of the
procurement activity, procedures
prescribed in this Act have been
followed;
(d)
ensure that stores, vehicles and
equipment are disposed of in
compliance with this Act;
(e)
exercise sound judgment in
making procurement decisions;
and
(f)
refer to the entity tender
committee for approval, a
procurement above the approval
threshold of the head of entity.
(4) The head of entity shall
(a)
apply the thresholds that relate
to heads of entities as
specified in the Second and
Third Schedules to this Act; and
(b)
facilitate contract
administration and ensure
compliance with the reporting
requirements under this Act.
Procurement unit
19.
(1) The head of a procurement
entity of each ministry,
department and agency and
Metropolitan, Municipal and
District Assembly, shall
establish a procurement unit
within the entity which shall be
headed and staffed by qualified
procurement personnel.
(2) The head of a procurement
entity shall appoint a head of
procurement of the procurement
entity who shall be the
Secretary to the entity tender
committee.
Entity tender committee
20.
(1) A procurement entity shall
establish a tender committee in
the manner set out in the First
Schedule and in accordance with
the categories set out in
Schedule IA.
(2) An entity tender committee
of each procurement entity shall
have the composition specified
in Schedule IB or Schedule l C
of the First Schedule.
(3) An entity tender committee
may co-opt a person to act as a
technical adviser at a meeting
of the entity tender committee,
but a co-opted person shall not
vote on a matter for decision
before the entity tender
committee.
(4) An entity tender committee
shall work within the method
thresholds specified in the
Fifth Schedule and approval
limits specified in the Second
and Third Schedules in the
conduct of its duties as regards
tenders for works, goods or
services.
(5) The thresholds applicable to
an entity tender committee shall
be as specified in the Second
and Third Schedules.
General provisions on the
functions of an entity tender
committee
20A.
(I) An entity tender committee
shall
(a)
ensure that at each stage of
procurement activity, procedures
prescribed in this Act have been
followed;
(b)
work within the threshold limits
specified in the Second Schedule
and the method thresholds
specified in the Fifth Schedule;
(c)
exercise sound judgment in
making procurement decisions;
and
(d)
review and refer to the central
tender review committee for
concurrent approval, procurement
above the entity tender
committee's threshold, that has
been duly
(i) processed by the procurement
unit: and
(ii) evaluated by the
appropriate evaluation panel
constituted by the head of
entity.
(2) The chairpersons and members
of an entity tender committee
and a tender review committee
may delegate their functions in
writing.
Functions of specific entity
tender committees
20B.
(1) An entity tender committee
of a central management agency,
ministry, department and
subvented agency shall
(a)
review and approve annual
procurement plans and quarterly
updates of procurement plans in
order to ensure that they
support the objectives and
opera-
tions of the entity;
(b)
confirm the range of acceptable
costs of items to be procured
and match these with the
available funds in the approved
budget of the entity;
(c)
review the schedules of
procurement and specifications
and ensure that the procurement
procedures to be followed are in
strict conformity with the
provisions of this Act, the
Regulations and guide- lines
made under this Act;
(d)
ensure that the necessary
concurrent approval is obtained
from the appropriate tender
review committee where
applicable, as specified in the
Second Schedule;
(e)
facilitate contract
administration and ensure
compliance with reporting
requirements under this Act; and
(f)
assist the head of entity to
ensure that stores, vehicles and
equipment are disposed of in
accordance with this Act.
(2) An entity tender committee
of a Regional Coordinating
Council shall
(a)
review procurement plans in
order to ensure that they
support the policies and
programmes of the Regional
Administration, Metropolitan,
Municipal or District Assembly;
(b)
confirm the range of acceptable
costs of items to be procured
and match these with the
available funds in the approved
budget of the Regional
Administration, Metropolitan,
Municipal Assembly or District
Assembly;
(c)
review the schedules of
procurement and specifications
and ensure that the procurement
procedures to be followed are in
strict conformity with the
provisions of this Act, its
Regulations and guidelines;
(d)
ensure that the necessary
concurrent approval is obtained
from the appropriate tender
review committee where
applicable, as specified in the
Third Schedule;
(e)
facilitate contract
administration and ensure
compliance with reporting
requirements under this Act; and
(f)
assist the head of entity to
ensure that stores, vehicles and
equipment are disposed of in
compliance with this Act.
(3) An entity tender committee
of a Metropolitan, Municipal or
District Assembly shall
(a)
review and approve annual
procurement plans and quarterly
updates of procurement plans in
order to ensure that they
support the policies and
programmes
of the Assembly;
(b)
confirm the range of acceptable
costs of items to be procured
and match these with the
available funds in the approved
budget of the Assembly;
(c)
review the schedules of
procurement and specifications
and ensure that the procurement
procedures to be followed are in
strict conformity with the
provisions of this Act, the
Regulations and guide- lines
made under this Act;
(d)
ensure that the necessary
concurrent approval is obtained
from the appropriate tender
review committee where
applicable, as specified in the
Third Schedule;
(e)
facilitate contract
administration and ensure
compliance with reporting
requirements under this Act; and
(f)
assist the head of entity to
ensure that stores, vehicles and
equipment are disposed of in
compliance with this Act.
Applicable thresholds
20C.
(1) The threshold limits for
ministries, departments and
agencies and Metropolitan,
Municipal and District
Assemblies for procurement shall
be as specified in the Second
and Third Schedules.
(2) The threshold limits for
procurement methods for
ministries, departments and
agencies, and Metropolitan,
Municipal and District
Assemblies shall be as specified
in the Fifth Schedule.
Meetings of entity tender
committees
20D.
An entity tender committee shall
meet at least once each quarter
and notice of the meetings shall
be given at least two weeks
before the date of the meeting.
Tender evaluation panel
20E.
(1) A procurement entity shall
appoint a tender evaluation
panel with the required
expertise to evaluate tenders.
(2) A tender evaluation panel
shall, in the performance of its
functions, proceed according to
the predetermined and published
evaluation criteria.
Tender review committees
20F.
(1) There shall be established
tender review committees for
ministries, departments and
agencies and Metropolitan,
Municipal and District
Assemblies as specified in the
Fourth Schedule.
(2) The tender review committee
of a ministry, department or
agency is the central tender
review committee.
(3) The tender review committee
of a Metropolitan, Municipal and
District Assembly is the
regional tender review
committee.
(4) The members of the central
tender review committee shall be
appointed by the Minister in
consultation with the Board.
(5) The members of a regional
tender review committee shall be
appointed by the Regional
Minister in consultation with
the Minister.
(6) The central tender review
committee, the regional tender
review committee and each entity
tender committee shall perform
the functions of the tender
review committee for the
entities for which they are
responsible.
(7) A tender review committee
shall perform the following
functions:
(a)
review the activities at each
step of the procurement cycle
leading to the selection of the
lowest evaluated bid or best
offer by the procurement entity
in relation to the particular
procurement under consideration,
in order to ensure compliance
with this Act, its operating
instructions and guidelines;
(b)
give concurrent approval or
otherwise to enable the
procurement entity continue with
the procurement process subject
to subsection (1) of section
(16);
(c)
participate in public
procurement for a; and
(d)
review decisions of heads of
entities in respect of a
complaint.
(8) The regional tender review
committee shall furnish the
Board, Metropolitan, Municipal
and District Assembly with
reports pertaining to the
regional tender review
committee's operations in the
prescribed format.
(9) A tender review committee
may engage the services of
consultants and advisers or
co-opt persons with the
specialised expertise that it
may require for the proper and
efficient performance of its
functions.
Review of tender review
committee decisions
20G.
(1) A procurement entity or
tenderer aggrieved by the
decision of a tender review
committee may apply to the Board
for the review of the decision
of that tender review committee.
(2) The Board shall take
appropriate action and determine
the grievance in accordance with
section 80(3) or as it considers
appropriate.
(3)A tenderer or procurement
entity that is dissatisfied with
a decision of the Board may seek
redress in court.
Section 21 of Act 663 amended
7. Section 21 of the principal
enactment is amended
(a)
in subsection (2) (a) by
the insertion after "packages"
of "description or lots";
(b)
in subsection (2) (c) by
the insertion after "method" of
"approvals needed";
(c)
by the substitution for
subsection (3) of
"(3) A procurement entity shall
submit to its entity tender
committee not later than one
month to the end of the
financial year the procurement
plan for the following year for
approval and shall post the
procurement plan on the website
of the Authority
(d)
by the substitution for
subsection (4) of U( 4)
After budget approval and at
quarterly
intervals after that, a
procurement entity shall
submit an update of the
procurement plan to
the entity tender committee and
shall post the
update of the procurement plan
on the website
of the Authority."; and
(e)
by the repeal of subsection (5).
Section 22 of Act 663 amended
8.
Section 22 of the principal
enactment is amended
(a)
by the substitution for
subsection (1) (a) (i) of
"(i) professional, technical and
environmental qualifications";
(b)
by the insertion of a new
paragraph after paragraph (b)
as paragraph (ba) "(ba) meet
ethical and other standards
applicable in this country;"
(c)
by the substitution for
"disbarment" of "debarment"
before "proceedings" in
paragraph (e) (ii);
(d)
by the addition of "that does
not discriminate and is
objectively justifiable" at the
end of subsection (1) (f);
(e)
by the insertion of "Subject to
the right of tenderers to
protect their intellectual
property or trade secrets" at
the beginning of subsection (2);
(f)
by the addition of "and shall be
set out in the pre-
qualification or pre-selection
documents" at the end of
subsection (3);
(g)
by the insertion of "that
constitutes a misrepresentation"
after "information" in
subsection (5);
(h)
by the addition of new
subsections (7), (8) and (9)
"(7) Other than in a case to
which subsection (1) (a)
applies, a procurement entity
shall
not disqualify a tenderer on the
grounds that the information
submitted concerning the
qualifications of the tenderer
were inaccurate or incomplete in
a non-material respect.
(8) The tenderer may however be
disqualified for failure to
remedy the deficiency
promptly on request by the
procurement entity.
(9) The procurement entity may
require the authentication of a
foreign document
provided by a tenderer to
demonstrate the qualification of
the tenderer.".
Section
22A of Act 663 inserted
9. The principal enactment is
amended by the insertion after
section 22 of a new section 22A
"Suspension of a supplier or
consultant
22A. (1) The Board may suspend a
supplier or consultant from
engaging in any public
procurement or disposal process
for a period determined by the
Board
(a)
on the recommendation of a
procurement entity or after
investigations on its own
initiative; and
(b)
where it is determined after a
special audit or by a court,
that a tenderer is engaged in
corrupt or fraudulent practices.
(2) The suspension of a supplier
or consultant by the Board shall
occur where
(a)
the supplier or consultant is in
contravention of a provision in
this Act;
(b)
the supplier or consultant is
debarred from the procurement
processes of an international
agency of which the Republic of
Ghana is a member;
(c)
the supplier or consultant is
found to have a record of
unsatisfactory performance after
investigations by the
Auditor-General;
(d)
the supplier or consultant fails
to substantially perform its
obligations under the contract;
(e)
the supplier or consultant is
suspended by a professional body
for professional misconduct;
(f)
the supplier or consultant is
found to have faulted on its
obligations by an Act of
Parliament; or
(g)
the supplier or consultant has
been convicted of corrupt
practice or a fraudulent act
under this Act.".
Section 26 of Act 663 amended
10. Section 26 of Act 663 is
amended by the substitution for
section 25 of
"Form of communication
26. (1) A procurement entity
shall, when soliciting the
participation of a tenderer in
procurement proceedings, specify
(a) the form of the
procurement proceedings; and
(b)
measures and requirements needed
the protection of classified
information involved to ensure
in the procurement.
(2) A procurement entity shall
only use the means of
communication commonly used by a
tenderer in a specific type of
procurement in the procurement
process and in any meeting with
tenderers shall use means of
communication that ensure the
full participation of tenderers.
(3) A procurement entity shall
put in place measures to secure
the authenticity, integrity and
confidentiality of the
information used in a
procurement process.
(4) Communication between
procurement entities and
tenderers shall be in writing
and communication in any other
\form shall be referred to and
confirmed in writing.".
Section 28 of Act 663 amended
11.
Section 28 of the principal
enactment is amended
(a)
in subsection (1) (I) by
the substitution for "section 25
(1)" of "section 25."
(b)
by the addition of new
paragraphs (0) to (y)
"(0)
a statement of the reasons and
circumstances relied on by the
procurement entity when the
procurement is cancelled,
stating the reasons and
circumstances relied on by the
procurement entity for its
decision to cancel the
procurement;
(p)
the reasons and circumstances
for which a procurement entity
rejected a tender or consultancy
proposal;
(q)
any socio-economic policies
considered in the procurement
proceedings, details of the
policies and the manner in which
they were applied;
(r)
a copy of the review proceedings
where a complaint is submitted
to the procurement entity;
(5) where a system other than
competitive tendering has been
used, the reasons and
circumstances the procurement
entity considered when selecting
the other procurement method;
(t)
the reasons and circumstances
relied on by a procurement
entity when a tenderer is
excluded from procurement
proceedings;
(u)
a statement where the award of a
procurement contract is as a
result of the failure of the
previous tenderer to sign the
procurement contract or provide
the required security for the
performance of the contract;
(v)
the reasons and circumstances
relied on by a procurement
entity where confidentiality in
the procurement proceedings is
required;
(w)
the requirements imposed on
tenderers for the protection of
classified information in a
procurement process;
(x)
a statement of the reasons and
circumstances used to justify
the framework agreement process
where applicable; and
(y)
any other information required
to be included in the record by
a procurement entity in
furtherance of the procurement
process.";
(c)
in subsection (4) by the
deletion of the words after
"competent court" in the second
line;
(d)
by the insertion of a new
subsection (4A) after subsection
(4);
"(4A) A procurement entity shall
not disclose the portion of the
record referred to in subsection
(1) (c) to (e), (I)
and (m) or
information that relates to the
examination, evaluation and
comparison of tenders,
proposals, offers or quotations
and tenders,
proposals, offers or quotation
prices other than the summary
referred to in subsection (1)
(e) if
(a)
non-disclosure of the
information is necessary for the
protection of essential security
interests of the State; or
(b)
disclosure of the information
would be contrary to law and
would
(i) impede law enforcement;
(ii) not be in the public
interest,
(iii) prejudice the legitimate
commercial interests of the
tenderer or consultant; and
(iv) inhibit fair competition as
provided under the Protection
Against Unfair Competition Act,
2000 (Act 589), unless the
disclosure is ordered by a court
or the Board in which case the
procurement entity shall comply
with the conditions of the
order."; and
(c)
by the addition of a new
subsection (7) after ubsection
(6)
"(7) A procurement entity shall
record, file and preserve the
documents that relate to the
procurement proceedings,
Regulations and the Public
Records and Archives
Administration Act, 1997 (Act
535).".
Section 28A of Act 663 inserted
12.
The principal enactment is
amended by the insertion after
section 28 of a new section 28A
"Cancellation of procurement
proceedings
28A. (1) A procurement entity
may, for specific and fully
justified reasons, cancel
procurement proceedings before
the expiry of the deadline for
the submission of tenders, where
(a)
the entity discovers an
imperfection in the wording of
the request for submission of
tenders, which could mislead
tenderers;
(b) the procurement
entity decides to carry out the
work subject of the tender by
itself;
(c)
there is a cut in the budget
intended for performing the
contract;
(d)
no bid has been submitted;
(e)
exceptional circumstances or a
force majeure render normal
performance of the
contract impossible;
(f)
the economic or technical data
of the project has fundamentally
changed.
(2) The head of a procurement
entity may, after the expiry of
the deadline for the submission
of tenders, cancel a procurement
proceeding where
(a)
no tender has been submitted
within the specified deadline;
(b)
the tender procedure has been
unsuccessful;
(c)
it is established that the
tender documents contain terms
or technical specifications
that cannot be met by any of the
tenderers or that these
specifications lead exclusively
to a specific economic operator;
(d)
the prices of the tenders that
meet the terms and the technical
requirements of the tender
documents are unrealistic or
appear to be the product of
collusion between the
tenderers, resulting in the
circumvention of healthy
competition;
(e)
the circumstances under which
the procurement procedure was
announced have
changed to such an extent that
the scope of the tender
procedure is no longer
necessary;
(f)
exceptional circumstances or a
force majeure render normal
performance of the
contract impossible; or
(g)
any other serious unforeseeable
reason, which the procurement
entity considers
justifiable, applies.
(3) The head of a procurement
entity shall, before cancelling
a procurement proceeding under
subsection (2) have due regard
to
(a)
the time and resources expended
by interested tenderers,
particularly in the case of
complex contracts with a
complicated scope;
(b)
the right of an interested party
who has or had an interest in
being awarded the
specific contract, and who has
sustained or is likely to
sustain a loss as a result of
the cancellation, to seek
administrative review under this
Act or to seek redress in court;
and
(c)
general principles of good faith
and transparency and public
policy.
(4) A procurement entity may
cancel procurement proceedings
after acceptance of a successful
tender if the tenderer whose
submission has been accepted,
fails to sign the applicable
contract as required or fails to
provide the applicable security
required for performance of the
contract.
(5) Subject to subsection (3),
where a procurement proceeding
is cancelled before the contract
is signed, a tenderer or
interested party shall not be
entitled to claim any
compensation from the
procurement entity.
(6) For the avoidance of doubt,
a procurement entity shall not
incur liability for invoking
this section and shall in no
event be liable for any damages
including, damages for loss of
profits in any way connected
with the cancellation of a
tender.
(7) The publication of a tender
notice does not commit the
procurement entity that
published the notice to
implement the programme or
project announced.
(8) Subject to this section,
where a tender proceeding
divides tenders into lots,
individual lots may be
cancelled.
(9) The decision of a
procurement entity to cancel the
procurement and reasons for that
decision shall be included in
the record of procurement
proceedings and shall be
promptly communicated to any
tenderer or consultant who
presented a tender or proposal.
(10) A cancellation notice shall
promptly after decision to
cancel is made, be published on
tile website of the procurement
entity or of the Authority
(11) After cancelling a
procurement proceeding, the
procurement entity may
(a)
start a new tender proceeding;
or
(b)
re-start the tender proceeding
using the same reference as the
original invitation."
Section 31 of Act 663 amended
13. Section 31 of the principal
enactment is amended
(a)
in subsection (1) by the
addition of "on the website of
the Authority" at the end of the
subsection; and
(b)
by the substitution for
subsection (2) of "(2) The
Regulations shall provide for
any other manner of publication
of the notice of procurement
contract awards.".
Section
32A of Act 663 inserted
14.
The principal enactment is
amended by the insertion after
section 32 of a new section 32A
H Confidentiality
32A. (1) A procurement entity
shall not disclose information
to a supplier or contractor if
the disclosure will compromise
national security or if the
disclosure will impede law
enforcement, prejudice the
legitimate commercial interest
of a supplier or contractor, or
impede fair competition.
(2) A procurement entity shall
treat applications to
pre-qualify, applications for
pre-selection and submissions
for a procurement contract in a
manner that avoids the
disclosure of their contents to
a competing tenderer or any
unauthorised person, except as
provided under this Act.
(3) A discussion or
communication permitted under
this Act between a procurement
entity and a tenderer during the
tender process or other
procurement process that permits
discussions, negotiations or
dialogue at any stage, is
confidential and, unless
required by law or ordered by a
court, a person concerned with
the discussion or communication
shall not disclose any technical
information, price or other
information to another person
without the consent of the other
party.
(4) A person concerned with the
discussion or communication in a
procurement process shall not
disclose any technical
information, price or other
information to another person
without the consent of the other
party.
(5) A person who contravenes
subsections (3) or (4) commits
an offence.
(6) Subject to section 28 (4), a
procurement entity involved in
classified information may
(a)
impose requirements on tenderers
to protect classified
information; and
(b)
demand that tenderers ensure
that their subcontractors comply
with the requirements to protect
classified information.".
Section 33 of Act 663 amended
15. Section 33 of the principal
enactment is amended
(a)
by the substitution for "or" in
the headnote of "and";
(b)
by the insertion of "goods,
works and" after "description
of" in the first line of
paragraph (1) (c) and
addition of "of renderers" at
the end of the paragraph;
(c)
by the substitution for
subsection (3) of "(3)
Standardised features,
requirements, symbols and
terminology relating to the
technical, quality and
performance characteristics of
the goods, works or services to
be procured shall be used, where
available, to formulate the
specifications, plans, drawings
and designs to be included in
the pre-qualification documents,
invitation documents or any
other documents for invitation
of proposals, offers or
quotations.
(4) A procurement entity shall
pay due regard to the use of
standardised trade terms and
standardised conditions where
available in the formulation of
the terms and conditions of the
procurement, the procurement
contract, the framework
agreement,
pre-qualification, pre-selection
agreements and the tender
documents."
Section 34A of Act 663 inserted
16. The principal enactment is
amended by the insertion after
section 34 of a new section 34A
under Part Four
"Methods of procurement and
conditions of use, including
framework contracting
34A. (1) The procurement entity
may conduct procurement by means
of the following methods and as
from time to time determined by
Regulations:
(a)
competitive tendering that
includes;
(i) international competitive
tendering,
(ii) national competitive
tendering,
(iii) request for quotations,
and
(iv) restricted tendering;
(b)
single source procurement;
(c)
selection of consultants
determined by
(i) quality and cost based
selection,
(ii) quality based selection,
(iii) selection based on
consultant's qualification,
(iv) least cost selection,
(v) fixed budget selection, and
(vi) single source selection;
and
(d)
framework contracting where
(i) the Board in consultation
with the Minister, may introduce
framework contracting agreements
and other methods for any
specific entity where the
context permits until it is
possible to do so nationally;
and
(ii) a procurement entity may
engage in a framework agreement
procedure in accordance with
regulations or guidelines issued
by the Board.
(2) These methods shall be used
subject to and in accordance
with the thresholds specified in
the Fifth Schedule.".
Section 38 of Act 663 amended
17.
Section 38 of the principal
enactment is amended
(a)
by the insertion of "by reason
of the highly complex and
specialised nature" after "if"
in paragraph (a);
(b)
by the numbering of the section
as subsection (1);
(c)
by the addition of a new
paragraph (c) after
paragraph (b)
"(c) if an offer for competitive
tendering fails to receive any
response after publication.";
and
(d)
by the addition of a new
subsection (2)
"(2) The Authority may charge a
processing fee as determined by
the Board for single source and
restricted tendering
applications." .
Section 40 of Act 663 amended
18.
Section 40 of the principal
enactment is amended
(a)
in subsection (1) by the
addition of "in the following
exceptional circumstances" at
the end of the second line;
(b)
by the substitution for
paragraph (d) of "(d)
where the procurement entity
having procured goods,
equipment, technology or
services from a supplier,
contractor or consultant,
determines that additional
supplies must be procured from
the supplier, contractor or
consultant because of
standardisation or compatibility
with existing goods,
equipment, technology or
services taking into account
(i) the effectiveness of the
original procurement in meeting
the needs of the procurement
entity;
(ii) the limited size of the
proposed procurement in relation
to the original procurement;
(iii) the reasonableness of the
price; and
(iv) the unsuitability of
alternatives to the goods or
services in question."; and
(c)
by the addition of "or
socio-economic policy" after "69
(2) (c) (i)", in the
penultimate line of subsection
(2).
Section 42 of Act 663 amended
19. Section 42 of the principal
enactment is amended
(a)
in paragraph (a), by the
insertion of "works" after
"goods" in line one;
(b)
by the re-numbering of the
provision as subsection (1);
(c)
in section 42 (b) by the
substitution for "Third
Schedule" of "Fifth Schedule";
and
(d)
by the addition of a new
subsection (2)
"(2) The successful quotation
shall be the lowest evaluated
responsive quotation that meets
the needs of the procurement
entity in the request for
quotations.".
Section 43 of Act 663 amended
20. Section 43 of the principal
enactment is amended by the
substitution for subsection (1)
of
"(1) The procurement entity
shall request for quotations
from as many suppliers or
contractors as practicable, but
shall compare quotations from at
least three different sources
that should not be related in
terms of ownership, shareholding
or directorship and the
principles of conflict of
interest shall apply between the
procurement entities and their
members and the different price
quotation sources.".
Section 44 of Act 663 amended
21. The principal enactment is
amended by the substitution for
section 44 of
"National competitive tendering
44. (1) Locally registered
suppliers, contractors or
consultants may participate in
national competitive tendering
procurement proceedings without
regard to nationality, except
where the procurement entity
decides to limit participation
in national competitive
tendering proceedings to only
domestic suppliers, contractors
or consultants, in accordance
with this section.
(2) In procurement proceedings
in which the procurement entity
decides that only domestic
suppliers, contractors or
consultants may submit tenders,
the procurement entity shall
employ national competitive
tendering procedures.
(3) A procurement entity is not
required to employ the
procedures set out in sections
47 and 48 if the estimated
contract amount is lower than
the value threshold specified in
the Fifth Schedule.
(4) A procurement entity, when
first calling for participation
in procurement proceedings,
shall notify prospective
tenderers whether the
proceedings are limited to
domestic suppliers only and the
declaration shall not be altered
later.
(5) A procurement entity that
decides to limit the
participation of suppliers,
contractors and consultants in
procurement proceedings, shall
include in the record of
procurement proceedings, a
statement of the reasons and
circumstances on which it relied
and shall make available to any
person, on request, its reasons
for limiting participation.
(6) A procurement entity may
stipulate in the tender
documents that tenderers must
quote only in the local currency
and payments must be made wholly
in the local currency.
(7) A procurement entity shall
stipulate a minimum period of
two weeks or a maximum period of
six weeks for the submission of
tenders under the national
competitive tender procedures."
.
Section 47 of Act 663 amended
22.
The principal enactment is
amended by the substitution for
section 4 7 of
"Procedures for inviting tenders
or applications to prequalify
47.
(1) A procurement entity shall
invite tenders or, where
applicable, applications to pre
qualify by causing an invitation
to tender or an invitation to
prequalify, to be published in
the Public Procurement Bulletin
and on the website of the
Authority.
(2) An invitation to tender or
prequalify shall be published in
at least one daily newspaper of
national circulation.
(3) The invitation may also be
published in a newspaper of wide
international circulation, in a
relevant. trade publication or a
technical or professional
journal of wide international
circulation.
(4) The invitation shall be
published on the website of the
Authority at a fee to be
determined by the Board.".
Section 49 of Act 663 amended
23.
Section 49 of the principal
enactment is amended by the
addition after subsection (3) of
a new subsection (4)
"(4) Where electronic
procurement procedures are
applied, the price of tender
documents shall be determined by
the Board.".
Section 50 of Act 663 amended
24.
Section 50 of the principal
enactment is amended
(a)
in subsection (1) by the
substitution for "Fourth
Schedule" of "Sixth Schedule"
;and
(b)
in subsection (3) (v) by the
deletion of "outside the
procurement contract" and the
insertion of "a statement of" at
the beginning of the paragraph.
Section 53 of Act 663 amended
25.
Section 53 of the principal
enactment is amended by the
repeal of subsection (2).
Section 54 of Act 663 amended
26.
Section 54 of the principal
enactment is amended in
subsection (2) by the addition
of "before the expiry of the
period of validity of tenders"
at the end of the subsection.
Section 57 of Act 663 amended
27.
Section 57 of the principal
enactment is amended by the
insertion of "in writing" after
"tender" in subsection (1).
Section 58 of Act 663 amended
28.
Section 58 of the principal
enactment is amended in
subsection (4) (b) by the
substitution for "section 1 (b)
" of "section 57 (3)" .
Section 59 of Act 663 amended
29.
Section 59 of the principal
enactment is amended
(a)
by the insertion of new
subsections (2), (3), (4) and
(5) after subsection (1);
"(2) The evaluation criteria
relating to the subject matter
of the procurement shall include
(a)
the price;
(b)
the cost of operating,
maintaining and repairing goods
and the functional
characteristics of the goods;
(c)
the time for delivery of goods;
(d)
the costs of construction and
the functional characteristics
of the construction;
(e)
the completion of construction;
(f)
the cost of the provision of
services;
(g)
the environmental and other
characteristics of the subject
matter of the procurement;
(h)
the terms of payment of the
procurement;
(i)
the guarantees in respect of the
subject matter; and
(j)
any other matter the procurement
entity considers relevant to the
procurement.
(3) The evaluation criteria
shall also include
(a)
any criteria authorised or
required to be taken into
account by the procurement
regulations and any other
enactment; and
(b)
a margin of preference for the
benefit of a domestic supplier
or for domestically produced
goods or any other preference
authorised or required by
procurement regulations or any
other enactment.
(4) The procurement entity shall
set out in the tender documents
(a)
whether the successful tender
will be deter- mined on the
basis of price or price and
other criteria;
(h)
the evaluation criteria in
pursuance of this section,
including the price as modified
by
any preference;
(c)
the relative weights of the
evaluation criteria; and
(d)
the manner of application of the
criteria in the evaluation
procedure.
(5) A procurement entity shall
use only the criteria and
procedures in the tender
documents and shall apply
criteria and procedures in the
manner disclosed in the ten-
der documents.":
(b)
by the renumbering of
subsections 59 (2), (3) and (4)
as subsections (6), (7) and (8);
and
(c)
by the insertion of "that" after
"effect" in the renumbered
subsection (8) (c).
Section 60 of Act 663 amended
30.
Section 60 (1) of the principal
enactment is amended by the
addition of "or any other
preference authorised by the
Board or required by Regulations
or any other enactment" at the
end of the subsection.
Section 64 of Act 663 amended
31.
Section 64 (2) (b) of the
principal enactment is amended
by the substitution for "Board"
of "committee."
Section 66 of Act 663 amended
32.
Section 66 (1) of the principal
enactment is amended by the
substitution for "above the
threshold in the Third Schedule"
of "in accordance with the Fifth
Schedule".
Section 68 of Act 663 amended
33.
Section 68 of the principal
enactment is amended
(a)
in subsection (1) by the
substitution for "Fourth
Schedule" of "Sixth Schedule";
and
(b)
in subsection (2)(l) by
the substitution for "section
57" of "section 60."
Section 69 of Act 663 amended
34.
Section 69 (2) (c) of the
principal enactment is amended
by the repeal of subparagraph
(vii).
Section 72 of Act 663 amended
35.
Section 72 of the principal
enactment is amended in
subsections (3) and (4) by the
substitution for "Third
Schedule" of "Fifth Schedule".
Section 74 of Act 663 amended
36.
Section 74 of the principal
enactment is amended
(a)
in subsection (2) by the
substitution for "including the
tender board reviews is
concluded" of "is reviewed and
approved by the appropriate
approving authority"; and
(b)
by the addition of a new
subsection as subsection (4)
"(4) The evaluation panel shall
open the financial proposals
after the approval of the
technical evaluation report by
the appropriate approving
authority and prepare a final
evaluation report for approval
by the appropriate entity tender
committee.".
Section 77 of Act 663 amended
37.
The headnote of section 77 of
the principal enactment is
amended by the addition of "in
selection procedure" after
"confidentiality."
Heading of Part Seven of Act 633
amended
38.
The heading of Part Seven of the
principal enactment is amended
by the insertion of "Complaints
and Administrative" before
"Review".
Section 78 of Act 663 amended
39.
Section 78 of the principal
enactment is amended
(a)
by the substitution for the
headnote of "Right to complaint
or administrative review";
(b)
in subsection (1), by the
substitution for "review" in
line three of "redress";
(c)
in subsection (2), by the
substitution for "the review" of
"complaint or administrative
review;"
(d)
by the addition of new
subsections (3), (4) and (5)
"(3) A complaint may be made by
an application to the
procurement entity;
(4) A request for administrative
review may be made by an
application to the Board.
(5) A tenderer, supplier,
contractor or consultant may
appeal a decision taken in
administrative review in
court.".
Section 79 of Act 663 amended
40.
Section 79 of the principal
enactment is amended
(a)
by the substitution for the head
note of "Complaint procedure by
procurement entity";
(b)
by the insertion of a new
subsection after subsection (1)
as subsection (1A)
(IA) The procurement entity
shall not take any step that
will bring into force a
procurement contract or
framework agreement where the
entity
(a)
receives a complaint within the
time limits specified;
(b)
receives notice of an
application for administrative
review from the Board; or
(c)
receives notice of an
application to or appeal from
court. ";
(c)
by the deletion of "head of the"
in subsections (3), (5)
and (7);
(d)
by the insertion of a new
subsection after subsection
(5) as subsection (5A);
"(5A)
The procurement entity may
overturn, correct, vary or
uphold any decision or action
taken by itself in the
procurement proceedings to which
the application relates
but this shall not apply to
decisions taken by the Board or
the court.";
(e)
by the insertion of new
subsections after subsection (7)
as subsections (7 A) and (7B)
"(7 A) All decisions taken under
this section, shall be in
writing and shall state the
action taken and the reasons for
the decision.
(7B) All decisions taken shall
promptly be made part of the
record of the procurement
proceedings and shall include
the complaint received by the
procurement entity under this
section."; and
(f)
by the insertion of "for
administrative review under
section 80" after "proceedings"
in the first line of subsection
(8).
Section 80 of Act 663 amended
41.
The principal enactment is
amended by the substitution for
section 80 of
"80. Administrative review
(1) A supplier, contractor or
consultant entitled to seek
administrative review may submit
a petition to the Board if
(a)
the head of the procurement
entity does not entertain the
complaint because the
procurement contract has entered
into force; or
(b)
the supplier, contractor, or
consultant claims to be
adversely affected by a decision
of the head of the procurement
entity under section 79.
(2) The petition shall be
submitted within twenty-one days
after
(a)
the supplier, contractor or
consultant became aware of the
circumstances giving rise to the
com- plaint, or
(b)
the time when the supplier,
contractor or consultant ought
to have become aware of those
circumstances, if the complaint
cannot be submitted under
section 79 because of the entry
into force of the procurement
contract.
(3) On receipt of a complaint,
the Authority shall give notice
of the complaint promptly to the
procurement entity.
(4) The Board may
(a)
declare the legal rules or
principles that govern the
subject-matter of the complaint
and address any suspension in
force;
(b)
order that the provisions of
this Act be com- plied with;
(c)
prohibit the procurement entity
from acting, taking a decision
or following aprocedure
that is not in compliance with
the provisions of this Act;
(d)
require the procurement entity
that has acted or proceeded in a
manner that is not in compliance
with the provisions of this Act
to take action or make a
decision or proceed in a manner
that is in compliance with the
provisions of this Act;
(e)
overturn in whole or in part an
act or decision of the
procurement entity that is not
in
compliance with the provisions
of this Act other than an act or
decision that brings the
procurement contract or
framework agreement into force;
(f)
revise a decision by the
procurement entity that is not
in compliance with the
provisions of this Act other
than any act or decision that
brings the procurement contract
or framework agreement into
force;
(g)
confirm a decision of the
procurement entity;
(h)
require the payment of
compensation for reasonable
costs incurred by the supplier
or contractor who submitted the
complaint,
(i) in connection with the
procurement proceedings as a
result of an act, decision or
procedure followed by the
procurement entity in the
procurement proceedings that is
not in compliance with the
provisions of this Act, and
(ii) for any loss or damage
suffered; which shall be limited
to the costs of the preparation
of the tender or the costs
related to the application or
both;
(i)
order that the procurement
proceedings be terminated;
(j)
authorize the procurement entity
to enter into the procurement
contract or framework
agreement where it is satisfied
that public interest justifies
this;
(k)
dismiss the complaint and
require the payment of
compensation from the
complainant for reasonable costs
incurred by the procurement
entity or the Board;
(5) The Board shall issue a
written decision concerning the
complaint within twenty-one days
after starting an administrative
review, stating the reasons for
the decision.
(6) The decision of the Board
and reasons for the decision
shall be made part of the record
of procurement proceedings.
(7) Correspondence pertaining to
a complaint shall be copied to
the Board.
(8) Without limiting this
section, the Minister may, in
consultation with the Board by
legislative instrument, specify
different administrative review
procedures for specific sectors
or entities. "
Section 82 of Act 663 amended
42.
The principal enactment is
amended by the substitution for
section 82 of
"Suspension of procurement
proceedings
82. (1) The Authority in
administrative review
proceedings may
(a)
order the suspension of the
procurement proceedings at any
time before the entry into force
of the procurement contract; or
(b)
order the suspension of the
performance of a procurement
contract or the operation of a
framework agreement that has
entered into force;
for as long as it finds the
suspension necessary to protect
the inter- ests of the
applicant, unless it decides
that urgent public interest
considerations require the
procurement proceedings, the
procurement contract or
framework agreement to proceed;
or
(c)
order that any suspension
applied be extended or lifted.
(2) The Authority shall order
the suspension of a procurement
proceeding for an initial period
of thirty working days or as
required under subsection (1).
(3) The Authority shall, upon
receipt of an application for
administrative review, promptly
(a)
suspend or decide not to suspend
the procurement proceedings or
the performance of a procurement
contract or the operation of a
framework agreement in
accordance with subsection
I(a) and (b);
(b)
notify the procurement entity
and identified participants of
the procurement proceedings to
which the application relates,
of the application and its
substance; and
(c)
notify the identified
participants of its decision on
the suspension of the
procurement proceedings to which
the application relates.
(4) Where the Authority decides
to suspend
(a)
the procurement proceedings,
(b)
the performance of a procurement
contract, or
(c)
the operation of a framework
agreement,
it shall also specify the period
of suspension.
(5) Where the Authority decides
not to suspend the procurement,
it shall
(a)
provide the applicant and
procurement entity with the
reasons for its decision; and
(b)
promptly publish a notice of the
application on the website of
the Authority when the
application for administrative
review is received.
(6) The Board may dismiss the
application and shall lift any
suspension applied, where it
decides that:
(a)
the application is manifestly
without merit or was not
presented in compliance with the
deadlines in subsection 80
(2(a) and (b);or
(b)
the application is without
standing;
and shall promptly notify the
applicant, the procurement
entity and any other relevant
participants of the dismissal,
the reasons for it and that the
suspension is lifted.
(7) The dismissal by the Board
constitutes a decision on the
application.
(8) The procurement entity shall
promptly provide the Board with
effective access to documents in
its possession related to the
procurement proceedings after
the lodgment of a complaint.
(9) The procurement entity shall
not take any step that would
bring into force a procurement
contract or framework agreement
in the procurement proceedings
concerned
(a)
where it receives notice of an
application for administrative
review from the Board; and or
(b)
where it receives notice of an
application or appeal from
court.
(10) The prohibition in
subsections (9) and 79 (1A)
shall expire fourteen working
days after the decision of the
procurement entity, the Board or
the court has been communicated
to the applicant, the
procurement entity and any other
participants in
the review proceedings.
(11) The procurement entity may
request the Board or a court to
authorise it to enter into the
procurement contract or
framework agreement on the
grounds of urgent public
interest.
(12) The Board or court may,
upon consideration of the
request, authorise the
procurement entity to enter into
the procurement contract or
framework agreement where it is
satisfied that urgent public
interest considerations justify
this.
(13) The decision of the Board
or court shall be made part of
the record of procurement
proceedings and promptly
communicated to the procurement
entity, the applicant and to any
other participant in the
administrative review
proceedings.".
Heading
of Part
Eight of Act 663 amended
43.
The heading of Part Eight of the
principal enactment is amended
by the insertion of "Vehicles,"
after "Stores".
Section 83 of Act 663 amended
44. Section 83 of the principal
enactment is amended in
subsection (1) by the insertion
of "vehicles," before
"unserviceable" in line two of
the subsection.
Section 83A of Act 663 inserted
45.
The principal enactment is
amended by the insertion after
section 83 of a new section 83A
"Instructions and guidelines for
disposal of vehicles and
unserviceable stores
83A.
(1) The Minister shall, in
consultation with the Board,
make further Regulations on the
disposal of vehicles,
unserviceable stores, and
obsolete equipment.
(2) The Board shall issue
detailed instructions and policy
guidelines related to the
disposal of vehicles,
unserviceable stores and
obsolete equipment.".
Section 85 of Act 663 amended
46.
The principal enactment is
amended by the repeal of section
85.
Section 86 of Act 663 amended
47.
The principal enactment is.
amended by the substitution for
section 86 of
"Code of conduct
86. (1) The Board shall, with
the approval of the Minister,
compile and publish a code of
conduct that shall apply to each
official of a procurement
entity, the members of an
evaluation panel, members of a
tender review committee, members
of the Board as well as
tenderers, suppliers,
contractors and consultants.
(2) The code of conduct shall
address
(a)
conflicts of interest in
procurement;
(b)
measures to regulate matters
concerning personnel responsible
for procurement;
(c)
declarations of interest in
particular procurements;
(d)
screening procedures and
training requirements; and
(e)
any other matter related to the
ethics of procurement.
(3) For the purpose of
subsection (2)(a), where
a tenderer has a disqualifying
conflict of interest, the
affected party shall be given
the opportunity to remedy the
conflict of interest in
accordance with the relevant
procedures of the procurement
entity concerned.
(4) A decision of a procurement
entity to exclude a tenderer
from the procurement process by
reason of conflict of interest
and the reasons for the
exclusion shall be included in
the record of procurement
proceedings and shall be
promptly communicated
to the tenderer concerned.
(5) The code of conduct shall
promptly be made accessible to
the public and shall be updated
regularly as directed by the
Board. "
Section 87 of Act 663 amended
48.
Section 87 of the principal
enactment is amended by the
substitution for "tender review
board" in subsections (1) and
(2) of "tender review
committee".
Section 89 of Act 663 amended
49.
Section 89 of the principal
enactment is amended in
subsection (2) by the insertion
of" or any other person" after"
consultant" in paragraphs
(a), (b), (d), (e) and
(f).
Section 90 of Act 663 amended
50.
The principal enactment is
amended by the substitution for
section 90 of
"Procedures on completion of
investigation
90. (1) An investigator shall
forward a copy of the
investigation report to the
Board.
(2) The Board shall afford a
person adequate opportunity to
make representations in a
matter, before taking an action
in terms of subsection (3) which
may adversely alter the rights
or property of that person.
(3) The Board shall, if
satisfied that there has been a
contravention of a provision of
this Act or any other enactment
in relation to procurement
proceedings or procurement
contracts, take action to
rectify the contravention which
action shall include
(a)
annulment of the procurement
proceedings;
(b)
cancellation of the procurement
contract;
(c)
ratification of anything done in
relation to the proceedings; or
(d)
a declaration consistent with
the relevant provisions of this
Act.".
Section 92 of Act 663 amended
51.
The principal enactment is
amended in section 92 by
(a)
the substitution for "one
thousand" of "two thousand five
hundred" in line three of
section 92 (1);
(b)
the addition of a new subsection
(3)
"(3) Despite anything to the
contrary in an enactment, a
person who contravenes a
Regulation made under this Act
is liable on summary conviction
to a fine of not more than two
thousand five hundred penalty
units or to a term of
imprisonment of not more than
five years or to both.".
Section 94 of Act 663 amended
52.
The principal enactment is
amended by the repeal of section
94.
Section 95 of Act 663 amended
53.
Section 95 of the principal
enactment is amended by the
deletion of "chief executive
officer of the" in the first
line.
Section 96 of Act 663 amended
54.
The principal enactment is
amended by the substitution for
section 96 of
"International obligations
96.
(1) Despite the extent of the
application of this Act to the
procurement, procurement with
international obligations
arising from a grant or
concessionary loan to the
Government shall be in
accordance with the terms of the
grant or loan subject to the
prior review and "no objection"
of procurement procedures by the
Authority.
(2) Procurement arising from an
external loan and commercial
facility, secured by Government,
other than a concessionary loan
and grant which specifies
particular procurement
procedures shall be subject to
the prior review and "no
objection" of those procurement
procedures by the Authority.".
Section 97 of Act 663 amended
55.
Section 97 (2) of the principal
enactment is amended
(a)
by the insertion of a new
paragraph (i)
"(i) to review the levels of
method thresholds or approval
thresholds;";
(b)
by the re-lettering of paragraph
(i) as paragraph (j); and
(c)
by the deletion of subsection
(3).
Section 98 of Act 663 amended
56.
Section 98 of the principal
enactment is amended;
(a)
by the insertion in the
appropriate alphabetical order
of the following new
definitions:
"Commission" includes a
committee and an ad hoc body
established for a particular
purpose;
"contract administrator" means
an individual appointed by the
head of entity to administer a
contract on behalf of the
entity;
"court" means court of competent
jurisdiction;
"domestic contractor" means, for
the purpose of eligibility for a
margin Of domestic preference
under international competitive
tender for Works, a contractor
registered and incorporated
under the laws of Ghana, having
majority shareholding by
Ghanaians and not subcontracting
more than 50 percent of the
total value of Works to foreign
contractors;
"framework agreement" means a
long-term agreement with
suppliers, contractors and
providers of non- consulting
services which sets out terms
and conditions under which
specific procurements
(call-offs) can be made
throughout the term of the
agreement.
Framework agreements are
generally based on prices that
are either pre-agreed, or
determined at the call-off stage
through competition or a process
allowing their revision without
further competition;
"locally registered supplier"
means a business entity
registered to do business under
the Companies Act, 1963 (Act
179);
"promptly" means without delay;
"public interest" includes a
right or advantage which enures
or is intended to enure to the
general benefit of the people of
this country;
"socio-economic policy" means
environmental, social, economic
and other policies of the
Government which promote social
or economic impact, authorised
or required by the procurement
regulations or any other
enactment taken into account by
the procurement entity in
procurement proceedings;
"statutory fund" means a fund
established by Act of
Parliament; and
"vehicle" includes a serviceable
and unserviceable means of
conveyance for people and goods;
(b)
by the deletion of (v)
appearing under the definition
of "head of entity" and the
insertion of "(v) State Owned
Enterprises, the chief executive
officer";
(c)
by the insertion of "and" after
"quality" in the definition of
"quality cost based selection";
and
(d)
by the insertion of "entity' in
the definition of" tender
committee" .
Section 99 of Act 663 amended
57. The principal enactment is
amended in section 99 by the
substitution for subsection (4)
of
"(4) Any tender review board and
entity tender committee that
performed the functions of an
entity tender committee or
tender review board under the
First and Second Schedules of
the principal enactment are
reconstituted in accordance with
the First and Fourth Schedules
of this Act." .
Schedules to Act 663 amended
58. The principal enactment is
amended by the substitution for
the Schedules of the following
new Schedules:
"FIRST SCHEDULE
(Section 20 and 20A)
CATEGORIES OF ENTITY TENDER
COMMITTEES
SCHEDULEIA
CATEGORY A (SPECIAL
CONSTITUTIONAL BODIES)
1.Legislature
2.Judiciary
3.Council
of State
4.Bank
of Ghana
CATEGORYB
1.Independent
Constitutional Bodies'
2.Office
of the President
3.Central
Management Agencies
4.Ministries
5.State
Owned Enterprises
6.Regional
Coordinating Councils
7.Statutory
fund management bodies
CATEGORYC
1.Head
Office of subvented agencies and
government departments/
2.Teaching
Hospitals
3.Tertiary
Institutions including
autonomous schools, institutes,
colleges and campus
of universities.
CATEGORYD
I. Regional office of subvented
agencies and government
departments
2.Regional
hospitals
3.Colleges!
CATEGORYE
1.District
office of subvented agencies and
government departments'
2.District
hospitals
3.Second
cycle schools or institutions
CATEGORYF
1.Metropolitan
Assemblies
2.Municipal
Assemblies and District
Assemblies
(footnotes)
I.Category
BI includes -Public Services
Commission, National Development
Plannin
Commission, Office of the Head
of Civil Service, Electoral
Commission, Office of the
District Assemblies Common Fund
Administrator, Commission On
Human Rights and
Administrative Justice, National
Media Commission, Lands
Commission and National
Commission for Civic Education.
2.Category
CI, Dl and El includes the Ghana
Education Service, Ghana Health
Service,
Ghana Police Service, Ghana
Prisons Service, Ghana
Immigration Service, Ghana
National Fire Service, Ghana
Revenue Service and the Local
Government Service.
3.Colleges
- Training Colleges (Nursing &
Agricultural or similar
Colleges).
4.That
are not decentralised
departments
Act 914
The Public Procurement
(Amendment) Act, 2016
It FIRST SCHEDULE
(Section 20 and 20A)
CATEGORIES OF ENTITY TENDER
COMMITTEES
SCHEDULEIA
CATEGORY A (SPECIAL
CONSTITUTIONAL BODIES)
1.Legislature
2.Judiciary
3.Council
of State
4.Bank
of Ghana
CATEGORYB
1.Independent
Constitutional Bodies!
2.Office
of the President
3.Central
Management Agencies
4.Ministries
5.State
Owned Enterprises
6.Regional
Coordinating Councils
7.Statutory
fund management bodies
CATEGORY C
1.Head
Office of subvented agencies and
government departments'
2.Teaching
Hospitals
3.Tertiary
Institutions including
autonomous schools, institutes,
colleges and campuses
of universities.
CATEGORYD
1.Regional
office of subvented agencies and
government departments
2.Regional
hospitals
3.Colleges-
CATEGORYE
1.District
office of subvented agencies and
government departments'
2.District
hospitals
3.Second
cycle schools or institutions
CATEGORYF
1.Metropolitan
Assemblies
2.Municipal
Assemblies and District
Assemblies
(footnotes)
1.Category
BI includes -Public Services
Commission, National Development
Planning
Commission, Office of the Head
of Civil Service, Electoral
Commission, Office of the
District Assemblies Common Fund
Administrator, Commission On
Human Rights and
Administrative Justice, National
Media Commission, Lands
Commission and National
Commission for Civic Education.
2.Category
CI, DI and EI includes the Ghana
Education Service, Ghana Health
Service,
Ghana Police Service, Ghana
Prisons Service, Ghana
Immigration Service, Ghana
National Fire Service, Ghana
Revenue Service and the Local
Government Service.
3.Colleges
- Training Colleges (Nursing &
Agricultural or similar
Colleges).
4.That
are not decentralised
departments
42
Act 914
The Public Procurement
(Amendment) Act, 2016
SIXTH SCHEDULE
(Sections 50 and 68)
Standard Tender Documents and
Standard Requests for Proposals
1.Standard
tender document for procurement
of works
2.Standard
tender document for procurement
of works, smaller con-
tracts
3.Standard
tender document for roads -
major
4.Standard
tender document for roads -
minor
5.Standard
tender document for procurement
of goods
6.Standard
tender document for procurement
of health goods
7.Standard
tender document for procurement
of text books
8.Standard
tender document for procurement
of information technology
systems
9.Standard
request for proposals for
selection of consultants
10.Standard
document for prequalification of
suppliers, consultants and
contractors
11.Standard
document for request for
expression of interest
12.Sample
format request for quotations
13.Disposal
of stores, vehicles and
equipment
14.Board
of survey form/disposal
certificate/destruction
certificate
15.Standard
tender evaluation format and
reporting format for goods,
works and selection of
consultants
16.Standard
and sample contracts for
consultants services
Complex time based assignments
Lump-sum remuneration
Small assignments time based
payments
Lump-sum payments.".
Date of Gazette
notification: 12th May, 2016.
GPCL, ASSEMBLY PRESS, ACCRA
GPCLlA33611,300105/2016
Website:
www.ghpublishingcompany.com
E-mail:
info@ghpublishingcompany.com
|