Public Procurement Act

Public Procurement (Disqualification) Regulations 2009

[GN 142 of 2009 – 15 November 2009] [Sections 35 and 61]

1. These regulations may be cited as the Public Procurement (Disqualification) Regulations 2009.

2. In these regulations –

"Act" means the Public Procurement Act;

"Director" means the Director of the Policy Office.

2A. In the absence of the Director, the functions of the Director may be discharged, and his powers may be exercised, by any member of the Policy Office appointed under section 4(1) of the Act.

[Reg. 2A inserted by reg. 3 of GN 169 of 2012 w.e.f. 29 September 2012.]

3. A supplier, contractor or consultant may be disqualified where –

(a) a bid is submitted which contains inaccurate or inadequate information with a view to misleading a public body or the Board regarding the eligibility or responsiveness of its bid;

(b) no bid security is required, and a bidder refuses to accept an award made to it and to enter into a contract with a public body;

(c) in the performance of one or more contracts, the supplier, contractor or consultant has repeatedly failed to comply with the terms and conditions of the contract or the specifications, as the case may be;

(d) he has committed a material breach of contract;

(e) he has, without the prior written approval of the public body, unlawfully assigned or subcontracted any of his obligations under a contract.

4. No public body shall –

(a) solicit or accept bids, proposals or quotations from a suspended or disqualified bidder;

(b) consider bids proposals or quotations submitted by a suspended or disqualified bidder prior to its suspension or disqualification.

5. Any disqualification of a potential bidder or supplier shall not affect any existing contract entered into between the bidder or supplier and a public body.

6. (1) A proposal for disqualification may include a recommendation that the supplier, contractor or consultant be suspended from participating in procurement proceedings pending the completion of disqualification proceedings.

(2) A proposal by a public body for the disqualification of a supplier, contractor or consultant shall be referred to the Director by means of a proposal for disqualification.

7. A proposal for disqualification shall –

(a) specify the name and address of the potential supplier, contractor
or consultant;

(b) recommend the period of disqualification;

(c) specify the grounds for the proposed action;

(d) be accompanied by a factual record from the public body which shall include all evidence and information in the possession of, or known to, the public body relating to the proposed action.

8. (1) The Director may request from any source, information or evidence concerning possible grounds for disqualification of a potential supplier, contractor
or consultant.

(2) A public body which is requested to submit information under paragraph (1) shall provide the information or document which is in its possession within one month following the request made.

9. (1) Where the Director considers that there are grounds for disqualification, he shall issue to the supplier, contractor or consultant a notice of proposed disqualification.

(2) The Director shall send a copy of the notice of proposed disqualification to the public body which proposes the disqualification.

10. A notice of proposed disqualification shall –

(a) inform the supplier, contractor or consultant that disqualification is
being considered;

(b) specify the grounds for the proposed disqualification;

(c) set out the facts constituting the grounds for the proposed disqualification;

(d) state the period of the proposed disqualification;

(e) inform the supplier, contractor or consultant of its right to make written representations and request for a hearing.

11. (1) A supplier, contractor or consultant may make representations in writing to the Director within 14 days of the receipt of the notice of proposed disqualification.

(2) Any representation made under paragraph (1) shall contain a certificate, signed by the bidder or supplier, that the information contained therein is true to
the best of his knowledge.

(3) The Director shall, within 7 days of the receipt of the representation, send a copy to the public body which proposed the disqualification.

12. (1) A supplier, contractor or consultant shall have a right to a hearing on the proposed disqualification provided that the bidder or supplier requests a hearing, in writing, within the period specified under regulation 11.

(2) A hearing under paragraph (1) shall take place within 10 days of the submission by the supplier, contractor or consultant of his request.

(3) The Director shall notify, in writing, the supplier, contractor or consultant and the public body which proposes the disqualification of the time and place of
the hearing.

13. The Director shall make a record of the hearing, which shall include all documents and evidence submitted at the hearing and a transcript of any testimony given during the hearing.

14. (1) The Director shall decide on the proposed disqualification within 50 days of the issue of a notice of proposed disqualification.

(2) The Director shall determine the period under which a supplier, contractor or consultant shall be disqualified from participating in procurement proceedings.

(3) The decision of the Director shall be recorded in writing and shall include a summary of the findings of fact and the reasons for the decision.

(4) The Director shall forthwith send a copy of his decision under paragraph (1) to the supplier, contractor or consultant and the public body which proposes the disqualification.

15. (1) A supplier, contractor or consultant who has been disqualified may apply to the Director to terminate or modify the period of the disqualification.

(2) Subject to paragraph (3), an application under paragraph (1) shall be submitted after the expiry of 6 months of the decision of disqualification.

(3) The Director shall not consider an application under paragraph (1) where the supplier, contractor or consultant is under disqualification following a previous decision of disqualification by the Director.

(4) The applicant shall specify the reasons for terminating or modifying the disqualification and submit any evidence in support of his application.

(5) (a) On receipt of an application under paragraph (1), the Director shall send a copy of the application to the public body which proposed the disqualification, requesting for comments and recommendation.

(b) The public body shall submit its comments and recommendation within 14 days of receipt of the copy of the application.

(6) The Director shall decide on the application within 14 days of receipt of the comments and recommendation of the public body.

(7) The Director shall notify in writing the supplier, contractor or consultant and the public body of his decision.

16. A decision of the Director in respect of a disqualification of a supplier, contractor or consultant shall be published in the Gazette.

17. (1) The Director shall maintain a register of disqualified suppliers, contractors or consultants into which shall be entered –

 (a) the name and address of every supplier, contractor or consultant under disqualification;

 (b) the grounds for disqualification of the supplier, contractor or consultant; and

 (c) the period under which the supplier, contractor or consultant is under disqualification.

 (2) The register shall, at all times during office hours, be made available to the public.

18. –

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Public Procurement (Framework Agreement) Regulations 2013

[GN 177 of 2013 – 13 July 2013] [Section 29A]

1. These regulations may be cited as the Public Procurement (Framework Agreement) Regulations 2013.

2. In these regulations –

"closed framework agreement without second-stage competition" means a framework agreement where the terms and conditions of the procurement are set out at the time the agreement is entered into;

"closed framework agreement with second-stage competition" means a framework agreement with more than one supplier where the terms and conditions of the procurement that could not be established with sufficient precision at the time the agreement was made are to be established or refined through a second-stage competition;

"open framework agreement" means a framework agreement which provides that a supplier other than the initial supplier(s) may subsequently be a party to the agreement.

3. The choice of framework agreement available to a public body or lead organisation shall be the –

(a) open framework agreement;

(b) closed framework agreement without second-stage competition; or

(c) closed framework agreement with second-stage competition.

4. For an open framework agreement, the public body or lead organisation shall –

(a) upon a request made by a potential supplier, communicate the terms and conditions of the framework agreement and any other relevant information;

(b) during the entire duration of the agreement, regularly request for expression of interest from potential suppliers to be party to the agreement.

5. The choice of procurement method available to a public body or a lead organisation for the procurement of works, goods, consultancy services or other services under a framework agreement shall be by open advertised bidding or restricted bidding.

6. A public body or a lead organisation shall specify in the bidding document –

(a) that the procurement is carried out under a framework agreement;

(b) that the framework agreement is concluded with one or more suppliers;

(c) the minimum or maximum limit of the number of suppliers that are parties to the agreement;

(d) the choice of the framework agreement in accordance with regulation 3;

(e) the terms and conditions of the framework agreement; and

(f) the process for shortlisting of suppliers where applicable, for the framework agreement.

7. The duration of a framework agreement shall not exceed 3 years.

8. A framework agreement shall, as far as reasonably practicable, be entered into with at least 3 suppliers.

9. A public body or a lead organisation shall prepare and maintain all necessary documents in respect of a framework agreement falling under its responsibility.

10. A public body shall provide to the lead organisation such information as may be necessary to enable the organisation –

(a) to carry out procurement proceedings under a framework agreement; and

(b) to monitor and manage a framework agreement.

11. The Policy Office may issue such instructions or guidelines in relation to procurement proceedings for a framework agreement.

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Public Procurement (Suspension and Debarment) Regulations 2008

[GN 8 of 2008 – 17 January 2008] [Section 61]

1. These regulations may be cited as the Public Procurement (Suspension and Debarment) Regulations 2008.

2. In these regulations –

"Act" means the Public Procurement Act;

"Director" means the Director of the Policy Office.

2A. Discharge of functions in absence of Director

In the absence of the Director, the functions of the Director may be discharged, and his powers may be exercised, by any member of the Policy Office appointed under section 4(1) of the Act.

[Reg. 2A inserted by reg. 3 of GN 170 of 2012 w.e.f. 29 September 2012.]

3. Effect of suspension or debarment

No public body shall –

(a) solicit or accept bids, proposals or quotations from a suspended or debarred bidder; or

(b) consider bids, proposals or quotations submitted by a suspended or debarred bidder or supplier prior to its suspension or debarment.

4. Effect on existing contracts

Any suspension or debarment of a potential bidder or supplier shall not affect any existing contract entered into between the bidder or supplier and a public body.

5. Proposal by a public body for suspension or debarment of a potential bidder, supplier or consultant

(1) A proposal by a public body for the debarment of a potential bidder or supplier shall be referred to the Director by means of a proposal for debarment.

(2) A proposal for debarment may include a recommendation that the potential bidder or supplier be suspended from participating in procurement pending
the completion of debarment proceedings.

6. Contents of proposal for debarment

A proposal for debarment shall –

(a) specify the name and address of the potential bidder or supplier;

(b) recommend the period of debarment;

(c) specify the grounds for the proposed action;

(d) be accompanied by a factual record from the public body, which shall include all evidence and information in the possession of, or known to, the public body, relating to the proposed action.

7. Inquiries by Policy Office

(1) The Director may request from any source, information or evidence concerning possible grounds for suspension or debarment of a potential bidder
or supplier.

(2) A public body which is requested to submit information under paragraph (1) shall provide the information or document which is in its possession within one month following the request made.

8. Issuance of notice of proposed debarment

(1) Where the Director considers that there are grounds for debarment, he shall issue to the bidder or supplier a notice of proposed debarment.

(2) The Director shall send a copy of the notice of proposed debarment to
the public body which proposed the debarment.

9. Contents of notice of proposed debarment

A notice of proposed debarment shall –

(a) inform the bidder or supplier that debarment is being considered;

(b) inform the bidder or supplier as to whether suspension is contemplated pending the completion of debarment proceedings;

(c) specify the grounds for the proposed debarment and, if applicable,
the suspension;

(d) set out the facts constituting the grounds for the proposed debarment and, if applicable, the suspension;

(e) state the period of the proposed debarment;

(f) inform the bidder or supplier of its right to make written representations
and request for a hearing.

10. Response by bidder or supplier

(1) A bidder or supplier may make representations in writing to the Director within 14 days of the receipt of the notice of proposed debarment.

(2) Any representation made under paragraph (1) shall contain a certificate, signed by the bidder or supplier, that the information contained therein is true to the best of his knowledge.

(3) The Director shall, within 7 days of the receipt of the representation, send a copy to the public body which proposed the debarment.

11. Suspension pending completion of the debarment proceedings

(1) On receipt of the representation made under regulation 10, the Director may decide as to whether the bidder or supplier may be suspended from participating in procurement proceedings pending the completion of debarment proceedings.

(2) Where the Director decides to suspend the bidder or supplier under paragraph (1), the Director may decide to terminate the suspension where he considers that the basis for the suspension, pursuant to paragraph (1), no longer exists.

(3) Any decision of the Director under paragraph (1) shall remain in effect until –

 (a) a decision on the proposed debarment pursuant to section 14 is taken;

 (b) the expiration of the time specified in regulation 14(1); or

 (c) a decision of the Director under paragraph (2) terminating the suspension,

whichever is earlier.

(4) The Director shall send a copy of his decision under paragraph (1) to the bidder or supplier and to the public body which proposed the debarment.

12. Hearing on debarment

(1) The bidder or supplier shall have a right to a hearing on the proposed debarment and, where it has been suspended, to challenge his suspension, provided that the bidder or supplier requests a hearing, in writing, within the time specified in regulation 10.

(2) A hearing under paragraph (1) shall take place within 10 days of the submission by the bidder or supplier of his request.

(3) The Director shall notify, in writing, the bidder or supplier and the public body which proposed the debarment of the time and place of the hearing.

13. Procedures at hearing

The Director shall make a record of the hearing, which shall include all documents and evidence submitted at the hearing and a transcript of any testimony given
during the hearing.

14. Decision on debarment

(1) The Director shall decide on the proposed debarment within 50 days of the issue of a notice of proposed debarment.

(2) The Director shall determine the period under which the bidder or supplier shall be debarred from participating in procurement proceedings.

(3) The decision of the Director shall be recorded in writing and shall include a summary of the findings of fact and the reasons for the decision.

(4) The Director shall forthwith send a copy of his decision under paragraph
(1) to the bidder or supplier and the public body which proposed the debarment.

15. Application to modify or terminate debarment

(1) A bidder or supplier who has been debarred may apply to the Director to terminate, or modify the period of, the debarment.

(2) An application under paragraph (1) shall be submitted, subject to paragraph (3), after the expiry of 6 months of the decision of debarment.

(3) The Director shall not consider an application under paragraph (1) where the bidder or supplier is under debarment following a previous decision of debarment
by the Director.

(4) The applicant shall specify the reasons for modifying or terminating the debarment and submit any evidence in support of his application.

(5) (a) On receipt of an application under paragraph (1), the Director shall send a copy of the application to the public body which proposed the debarment, requesting comments and recommendations from that public body.

 (b) The public body shall submit its comments and recommendations within 14 days of the receipt of the copy of the application.

(6) The Director shall decide upon the application within 14 days of the receipt of the comments and recommendations of the public body.

(7) The Director shall notify in writing the bidder or supplier and the public
body of his decision.

16. Disclosure of decision

A decision of the Director in respect of a debarment or suspension of a bidder or supplier, as the case may be, shall be published in the Gazette.

17. Register of debarred and suspended bidders or suppliers

(1) The Director shall maintain a register of all suspended or debarred
bidders which shall –

 (a) specify the name and address of every bidder or supplier under suspension or debarment;

 (b) set out the grounds for debarment or suspension, as the case may be, of the bidder or supplier; and

 (c) specify the period under which the bidder or supplier is on debarment or suspension, as the case may be.

(2) The register shall at all times during office hours be made available to
the public.

18. –

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Public Procurement Regulations 2008

[GN 7 of 2008 – 17 January 2008] [Section 61]

1. These regulations may be cited as the Public Procurement Regulations 2008.

2. In these regulations –

"Act" means the Public Procurement Act;

"departmental work" means any public work to be carried out directly by the public body itself or by another public body without entering into any contract;

"deposit" –

(a) means the retention money, earnest money, bid bond or performance bond furnished for security or pending the settlement of any work;

(b) includes any amount furnished for security owing for any other reason, as well as the security associated with the filing of a complaint;

"exempt organisation" means a public body which is excluded from the application of the Act in relation to the types of contracts specified in the First Schedule;

"joint venture" means an association of 2 or more entities for the purpose of carrying out a procurement contract;

"parastatal body" means an organisation established under an enactment, whether body corporate or not, and which depends wholly or partly on
Government funding;

"regional preference" means the margin of preference applicable to suppliers of the countries of the region according to instructions issued by the Policy Office.

[Reg. 2 amended by reg. 3 of GN 68 of 2009 w.e.f. 2 July 2009.]

2A. Application of Act to exempt organisations

Nothing in these regulations shall be construed as excluding the application of the Act to a public body specified in the First Schedule, and the Schedule to the Act, in respect of a procurement contract to which the public body intends to be a party and which is specified in column 2 of the Schedule to the Act.

[Reg. 2A inserted by reg. 4 of GN 68 of 2009 w.e.f. 2 July 2009.]

3. Procedures and mechanism

(1) The Policy Office shall inform public bodies and end users of the types of statistical and reporting information that are required to be furnished, and the periodicity of their submission.

(2) The Policy Office shall establish procedures and mechanisms to –

 (a) ensure the effective and timely solicitation of view points of interested parties in the development of procurement policies, regulations, procedures, documents and forms;

 (b) obtain from the Board, the Review Panel and public bodies information on procurement activities; and

 (c) monitor compliance with the Act.

(3) The Policy Office shall periodically solicit the views of the business community on the effectiveness of the procurement system and make appropriate recommendations to the Minister.

(4) The Polic

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