Public Procurement Regulations 2015
PUBLIC PROCUREMENT REGULATIONS
Public Procurement Regulations 2015 Arrangement of Sections
PUBLIC PROCUREMENT REGULATIONS 2015
Arrangement of Sections
PART 1 – PRELIMINARY 1
1 Short Title .............................................................................................................. 1
2 Interpretation .......................................................................................................... 1
3 Scope of the regulations ......................................................................................... 3
4 Exemptions ............................................................................................................ 4
PART 2 – INSTITUTIONAL ARRANGEMENTS 5
5 Establishment of the Government Procurement Committee .................................. 5
6 Operation of the Government Procurement Committee ........................................ 6
7 Functions of the Government Procurement Committee ........................................ 7
8 Procurement Division ............................................................................................ 8
9 Procurement Units ............................................................................................... 10
10 Evaluation Committee ......................................................................................... 10
11 Establishment of Central Procurement Unit ........................................................ 11
PART 3 – RESPONSIBILITIES AND APPROVALS 11
12 Contracting Entity ................................................................................................ 11
13 Procurement Unit of Contracting Entity .............................................................. 12
14 Operation of Central Procurement Unit ............................................................... 13
15 Evaluation Committee ......................................................................................... 14
PART 4 – PROCUREMENT PREPARATION AND PLANNING 14
16 Procurement preparation ...................................................................................... 14
17 Planning procurements ....................................................................................... 15
18 Annual procurement plan ..................................................................................... 16
19 Procurement Proposal .......................................................................................... 16
Arrangement of Sections Public Procurement Regulations 2015
20 Estimated cost and artificial division of procurements ........................................ 17
21 Division into lots .................................................................................................. 18
22 Centralized procurement of common use items ................................................... 18
PART 5 – PROCUREMENT REQUIREMENTS AND
QUALIFICATION CRITERIA 20
23 Determining the object of procurement ................................................................ 20
24 Use of brand names .............................................................................................. 22
25 Eligibility and non-discrimination........................................................................ 22
26 Permitted bidder qualification criteria .................................................................. 22
27 Evidence of Qualification criteria ........................................................................ 23
PART 6 – METHODS OF PROCUREMENT 25
28 Selection of procurement method ........................................................................ 25
29 International Procurement .................................................................................... 25
30 Competitive Bidding Method ............................................................................... 26
31 Two stage Competitive Bidding Method ............................................................. 26
32 Selective Bidding Method .................................................................................... 27
33 Restricted Bidding Method .................................................................................. 28
34 Limited Bidding Method ...................................................................................... 29
35 Request for Quotations Method ........................................................................... 30
PART 7 – PROCUREMENT PROCEEDINGS 31
36 Form of communication ....................................................................................... 31
37 Invitations to bid................................................................................................... 32
38 Publication of procurement notices ...................................................................... 32
39 Minimum bidding periods .................................................................................... 33
40 Bidding documents ............................................................................................... 34
41 Clarifications ........................................................................................................ 35
42 Alternative bids .................................................................................................... 36
43 Domestic preference ............................................................................................. 36
44 Cancellation of procurement proceedings or rejection of bids ............................. 37
45 Unsuccessful procurement ................................................................................... 38
PART 8 – BID SUBMISSION, BID OPENING, EVALUATION AND
AWARD IN COMPETITIVE BIDDING 39
46 Submission of bids or applications to pre-qualify ................................................ 39
47 Bid security .......................................................................................................... 39
48 Amendment or withdrawal of bid ........................................................................ 41
49 Bid opening .......................................................................................................... 41
50 Confidentiality ...................................................................................................... 41
51 Examination and evaluation of bids ..................................................................... 42
52 Correction of Non-Conformities, Errors and Omissions ...................................... 44
53 Clarification of bids .............................................................................................. 44
54 Disqualification .................................................................................................... 44
Public Procurement Regulations 2015 Arrangement of Sections
55 Technical Responsiveness ................................................................................... 45
56 Evaluation of bids ................................................................................................ 45
57 Application of domestic preference ..................................................................... 47
58 Prohibition of negotiation .................................................................................... 47
59 Contract award ..................................................................................................... 48
60 Performance security ........................................................................................... 48
PART 9 – PROCUREMENT OF CONSULTANCY SERVICES 49
61 Request for proposals method .............................................................................. 49
62 Methods of selection and conditions for use ........................................................ 51
63 Evaluation of Proposals ...................................................................................... 52
PART 10 – TRANSPARENCY AND INTEGRITY 54
64 Bidder debriefing ................................................................................................. 54
65 Contract award ..................................................................................................... 55
66 Records and reports of procurement activities ..................................................... 55
67 Conduct of procurement officers ......................................................................... 56
68 Conduct of bidders and contractors ..................................................................... 56
69 Offences by procurement officers ........................................................................ 57
70 Debarment ............................................................................................................ 57
71 Grounds for debarment ........................................................................................ 58
72 No contract award ................................................................................................ 59
PART 11 – COMPLAINTS AND APPEALS 59
73 Right to complain ................................................................................................. 59
74 Review by contracting entity ............................................................................... 59
75 Independent Expert .............................................................................................. 60
76 Application for Review ........................................................................................ 61
77 Review decisions ................................................................................................. 61
78 Costs of the Procedure ......................................................................................... 62
PART 12 – REPEALS AND SAVINGS 63
79 Repeals and savings ............................................................................................. 63
SCHEDULE 1 64
DEBARMENT PROCEDURE 64
SCHEDULE 2 75
PROCEDURES FOR COMPLAINTS REVIEW 75
Public Procurement Regulations 2015
Regulation PART 1 –
PUBLIC PROCUREMENT REGULATIONS 2015
PUBLIC MANAGEMENT FINANCE ACT 2002
The Minister of Finance , in exercise of the powers conferred by
section 44 of the Public Finance Management Act 2002, makes the
following Regulations —
PART 1 – PRELIMINARY
1 Short Title
This Regulation may be cited as the Public Procurement Regulations 2015.
In these Regulations, unless the context otherwise requires -
“Act” means the Public Finance Management Act 2002;
“bid” means, according to the type of procurement method being used,
a bid, a proposal or a quotation submitted by a bidder in response to an
invitation by a contracting entity;
“bidder” means a natural or legal person who submits a bid pursuant to
solicitation by the relevant contracting entity;
Regulation 2 Public Procurement Regulations 2015
“CEO” unless the context requires otherwise, means the Chief
Executive Officer responsible for finance;
“consultancy services” means intellectual or professional services and
assignments performed by consultants with outputs of advisory, design
and transfer of know-how nature.
“consultant” means the provider of consultancy services;
“contracting entity” means any Ministry, Department, Division,
agency or other unit of the Government or any subdivision thereof,
engaging in procurement as well as the Central Procurement Unit; this
shall include public enterprises and statutory bodies, as applicable;
“contractor” means the provider of construction of works;
“days” means calendar days unless otherwise indicated;
“framework contract” means a contract between one or more
contracting entities and one or more contractors, suppliers, service
providers or consultants the purpose of which is to establish the terms
governing orders for the supply of goods and related services or repair
and maintenance works to be placed during a given period, in particular
with regard to price, and, where appropriate, the quantity or quantities
“goods” means objects of every kind and description, including
commodities, raw materials, products and equipment and objects in
solid, liquid or gaseous form as well as services incidental to the supply
of goods, if the value of these incidental services does not exceed that of
the goods themselves;
“in writing” means communication in hand or machine written type and
includes messages by facsimile or e-mail;
“officer” means any person employed in the service of the Government;
“procurement” means all activities and decisions made for the supply
of goods, works, services and consultancy services; the supply of goods
shall include all contracts having as their object the purchase, lease,
rental or hire purchase, with or without option to buy, of such goods;
“procurement contract” means a formal agreement between
Government and supplier, contractor, service provider or consultant
resulting from procurement proceedings;
“Procurement Division” is the body established in accordance with
Public Procurement Regulations 2015 Regulation 3
“procurement unit” means a unit established by a contracting entity
which is responsible for the procurement of the goods, works, services
or consultancy services;
“purchase order” means a simplified document which is used in a
request for quotations procedure to place the order for the goods, works,
services or consultancy services procured and which incorporates the
terms and conditions of contract.
“public employment contract” means a contract for any length of time
(short-term, long-term, part-time or full-time) between the Government
and an employee under which the employee is engaged, including on the
terms and conditions of employment which govern public servants, is
entitled to be paid annual, sick or other leave, benefits from pension
rights or superannuation payments and otherwise works in accordance
with the instructions issued by the employer.
“public enterprise” means an entity falling within the definition of the
Public Enterprises Act 2002;
“security” means the money, bank guarantee or other financial security
that the bidder provides to secure his obligations in the procurement
proceedings and in fulfilling its obligations. The contracting entity
cannot claim any property right over it unless the bidder defaults on
“supplier” means the provider for the supply of goods and/or services;
“services” means supply of non-consultancy, namely physical services,
or other labour, time or effort; stand-alone service type contracts (such
as security services, catering services and geological services);
“thresholds” means the financial limits above or below which certain
procurement proceedings may be applied;
“TOR” means terms of reference;
“works” means all works associated with the construction,
reconstruction, demolition, repair, maintenance or renovation of a
building or structure, or any construction works such as railways, roads,
highways, site preparation, excavation, installation of equipment and
materials, decoration, as well as physical services incidental to works, if
the value of those services does not exceed that of the works themselves.
3 Scope of the regulations
(1) Subject to sub-regulation (2) and to the exemptions set out in regulation
4, these Regulations apply to all procurement carried out by contracting
Regulation 4 Public Procurement Regulations 2015
(2) Where these Regulations conflict with the procurement rules of a donor
or funding agency, the application of which are mandatory pursuant to
or under an obligation entered into by the Government, the requirements
of those rules shall prevail, but in all other respects, procurement shall
be governed by the provisions of these Regulations.
(3) Public enterprises and statutory bodies may adopt their own rules and
procedures governing their procurement provided that those rules and
procedures are consistent with these Regulations.
(4) Where public enterprises and statutory bodies have adopted or adopt
such rules and procedures, they shall be forwarded to the Government
Procurement Committee within six months of the entry into force of
these Regulations or immediately upon the adoption of the said rules and
procedures and the Government Procurement Committee shall decide on
their consistency with these Regulations within two months of receipt.
(5) Where public enterprises and statutory bodies do not adopt or have not
adopted their own rules and procedures which are consistent with these
Regulations, they shall be subject to these Regulations at the end of the
twelve months following their entry into force.
These Regulations do not apply to:
(a) the procurement or acquisition of fiscal agency or depositary services,
liquidation and management services for regulated financial institutions,
or services related to the sale, redemption and distribution of public debt,
including loans and Government bonds, notes and other securities;
(b) arbitration and conciliation services;
(c) public employment contracts, including statutory appointments;
(d) the procurement of agricultural products made in furtherance of
agricultural support programmes and human feeding programmes,
including food aid;
(e) the acquisition or rental, by whatever financial means, of land, existing
buildings or other immovable property;
(f) the supply of military equipment; works, supplies and services directly
related to military equipment; or works and services for specifically
(g) contracts when they are declared to be secret, when their performance
shall be accompanied by special security measures in accordance with
the laws, regulations or administrative provisions in force in the
Public Procurement Regulations 2015 Regulation 5
Kingdom of Tonga or when the protection of the essential interests of
the Kingdom so requires.
PART 2 – INSTITUTIONAL ARRANGEMENTS
5 Establishment of the Government Procurement Committee
(1) There is hereby established a Government Procurement Committee,
which has the object of advising the Government in regulating and
monitoring public procurement in the Kingdom and on issues relating to
public procurement in general.
(2) The Government Procurement Committee shall be composed of
(a) Minister responsible for finance (Chairperson);
(b) CEO responsible for finance (Deputy Chairperson);
(c) Chief Secretary and Secretary to Cabinet;
(d) Solicitor General; and
(e) CEO responsible for revenue and customs.
(3) The Procurement Division shall provide secretariat services to the
Government Procurement Committee and shall, in addition to the
responsibilities assigned to it under these Regulations, provide
administrative support to the Government Procurement Committee and
(a) give notice of meetings of the Government Procurement
(b) take accurate minutes of meetings of the Government
Procurement Committee and provide copies to members of the
Government Procurement Committee and to affected
(c) keep records of the business of the Government Procurement
(d) prepare the correspondence of the Government Procurement
(e) carry out such other tasks in relation to procurement as are
assigned by these Regulations or the Government Procurement
Regulation 6 Public Procurement Regulations 2015
6 Operation of the Government Procurement Committee
(1) The Government Procurement Committee shall meet for the dispatch of
business at such time and place as the Chairperson may decide but shall
meet at least once every month.
(2) At any meeting of the Government Procurement Committee where he or
she is present, the Chairperson shall preside and, in his or her absence,
the Deputy Chairperson shall exercise the functions of the Chairperson.
(3) The quorum at a meeting of the Government Procurement Committee
shall be three.
(4) Each member shall have one vote but in the case of an equality of votes,
the Chairperson shall have a casting vote.
(5) Notwithstanding sub-regulation 6(1), the Minister may request the
Government Procurement Committee to convene an urgent meeting to
deal with a matter of national importance and requires urgent attention.
(6) The Government Procurement Committee may at any time co-opt any
person to provide special or additional technical knowledge or advise or
otherwise assist the Government Procurement Committee at any of its
meetings but the person co-opted shall not vote on any matter for
decision by the Government Procurement Committee.
(7) All acts, matters or things authorized or required to be done by the
Government Procurement Committee shall be decided at a meeting
where a quorum is present and the decision is supported by the votes of
at least three members, including the Chairperson.
(8) Any proposal circulated among all members and agreed to in writing by
at least 3 members, including the Chairperson shall be of the same force
or effect as a decision made at a duly constituted meeting of the
Government Procurement Committee and shall be incorporated in the
minutes of the next succeeding meeting of the Government Procurement
(9) The Government Procurement Committee shall cause minutes of all its
meetings to be taken by the secretary to the Committee and signed by
the Chairperson and kept in the proper form as a public document.
(10) The Government Procurement Committee may, for the discharge of its
functions appoint staff and committees of the Government Procurement
Committee comprising members of the Government Procurement
Committee or non members or both and may assign to them functions
as the Government Procurement Committee may determine, save and
except that a committee comprised entirely of non-members may only
advise the Government Procurement Committee.
Public Procurement Regulations 2015 Regulation 7
(11) Subject to these Regulations, the Government Procurement Committee
shall regulate its meetings and procedure as it thinks fit.
(12) A member of the Government Procurement Committee who has any
interest, direct or indirect, in any matter to be considered by the
Government Procurement Committee, shall disclose the nature of his
interest to the Government Procurement Committee and such disclosure
shall be recorded in the minutes of the Government Procurement
Committee and such member shall not take part in any deliberation or
decision of the Government Procurement Committee relating to that
matter, and a member who contravenes this sub-section shall be guilty
of misconduct and liable to be removed from the Government
Procurement Committee. The Government Procurement Committee,
without the disclosing member, may determine in writing that the
disclosure does not disqualify the member from sitting on a particular
7 Functions of the Government Procurement Committee
(1) The functions of the Government Procurement Committee shall be to:
(a) formulate and propose policy, legislative and regulatory actions,
revisions or amendments to existing legislation for the better
implementation of public procurement in the Kingdom;
(b) approve, on the advice of the Procurement Division, the
consistency with these Regulations of procurement rules and
procedures adopted by public enterprises and statutory bodies;
(c) issue standard forms of contracts and standard bidding documents
prepared by the Procurement Division for mandatory use by all
(d) maintain and make public on its website a list of contractors,
suppliers, service providers and consultants debarred in
accordance with Part 10; and
(e) advise and approve the issuance of forms by the Procurement
Division prescribing the content, format and the frequency or
dates for submission of procurement reports to be submitted by
(2) In addition, for those procurements with a value exceeding $100,000,
the Government Procurement Committee shall review the bidding
process and issue a “Letter of No-objection” to the contracting entity,
prior to the issuance of the Notification of Award. In so doing, the
Government Procurement Committee shall review the compliance of the
contract award procedure leading to that decision with these Regulations
Regulation 8 Public Procurement Regulations 2015
but, to the extent that the Government Procurement Committee does not
accept the recommendation of the Evaluation Committee, it shall do so
only on the basis of written reasons.
(3) Subject to this regulation, the Government Procurement Committee
shall have such structures and organisation as the Minister may
determine necessary for the efficient performance of its functions.
8 Procurement Division
(1) There is hereby established a Procurement Division under the overall
direction of the CEO.
(2) The Head of the Procurement Division shall have such officers as are
required for the efficient performance of the tasks of the Division.
(3) In addition to responsibility for the tasks outlined in sub-regulation (4),
the Head of the Procurement Division shall be responsible for:
(a) the day to day management of the affairs of the Division;
(b) the administration, organisation and control of the officers of the
(c) the management of funds, budget and other property of the
(d) the performance of such other functions as the Minister may
(4) In the performance of its tasks, the Procurement Division shall:
(a) for all contracts where the estimated contract value exceeds
$7,500 but remains below $ 10,000, receive, review and endorse
the procurement proposal submitted by the procurement unit of
the contracting entity within 3 working days of receipt, subject to
the timely submission by the Procurement Unit of the contracting
entity of any additional information required.
(b) monitor compliance with these Regulations and propose any
amendment to them or any new laws and regulations regarding
public procurement which appear necessary in the light of
international practices and experience gained in the course of the
public procurement process in the Kingdom;
(c) with the approval of the GPC, issue manuals, technical guidelines
and instructions necessary to implement these Regulations and
give, on request, advice and assistance to contracting entities
without, however, diminishing the responsibility of a contracting
entity and the Procurement Division shall not get involved in, or
Public Procurement Regulations 2015 Regulation 8
provide opinion on, any specific procurement or contract award
(d) prepare standard documents and templates to be used in
connection with public procurement;
(e) present an annual report to the Minister regarding the overall
functioning of the public procurement system, including
recommendations on measures to be taken by Government to
revise and improve procurement approval method and other
measures to enhance the quality of procurement work;
(f) prepare appropriate templates for contracting entities for
maintaining records and preparing reports and establishing a
reporting mechanism enabling it to monitor procurement system
(g) develop a strategy for the use of electronic tools for procurement,
including the development of a public procurement website with
information relating to public procurement in the Kingdom,
including information concerning the award of contracts
exceeding a certain threshold determined by the Procurement
(h) ensure the publication on such website of such documents as are
required to be published by the contracting entities under these
Regulations including, but not limited to, annual and proposed
procurement plans, procurement notices, contract award notices
and lists of debarred contractors, suppliers, service providers and
(i) develop, promote and support training and professional
development of officials and other persons engaged in public
procurement, including their adherence to the highest ethical
(j) establish and maintain secretariat support to the Government
(k) organise and provide secretariat and logistical support to the
Independent Expert appointed pursuant to Part 11;
(l) arrange for the compilation and publication of the decisions of the
Independent Expert in an appropriate format; and
(m) provide to the Government Procurement Committee an opinion
on the consistency with these Regulations of any procurement
rules and procedures submitted by public enterprises and statutory
bodies to the Committee for approval under Regulation 3(4).
Regulation 10 Public Procurement Regulations 2015
9 Procurement Units
(1) A procurement unit shall be established in each contracting entity to
carry out procurement activities.
(2) The head of the contracting entity shall decide the size, location, and
structure of the procurement unit, taking into account its procurement
requirements and the availability of trained and experienced officers.
(3) In cases where the level of procurement activity does not justify the
creation of a procurement unit, the head of the contracting entity may:
(a) nominate a single public officer to carry out the functions
of a procurement unit; or
(b) apply the provisions of sub-regulation (4).
(4) In those cases where the Head of a contracting entity decides that there
is insufficient procurement capacity within the procurement unit, all
procurement may be carried out by the Central Procurement Unit,
established under regulation 10, on behalf of the contracting entity.
(5) Contracting entities which directly purchase works, supplies or services
from or through the Central Procurement Unit in accordance with sub-
regulation (4) shall be deemed to have complied with these Regulations
insofar as the Central Procurement Unit has complied with them.
10 Evaluation Committee
(1) Evaluation Committees shall be appointed by the Head of the
contracting entity for all contracts whose value exceeds $ 7,500. In
addition to the obligatory membership of a representative of the
appropriate Procurement Unit (either of the Procurement Unit or of the
contracting entity or the Central Procurement Unit), the Evaluation
Committee shall be composed of a minimum of three further members
which shall include:
(a) the officer responsible for preparing the requirement/technical
(b) the financial officer of the contracting entity; and
(c) other members to provide technical, legal or commercial
expertise, as appropriate.
(2) The representative of the appropriate Procurement Unit shall be a non-
(3) The Evaluation Committee shall include skills, knowledge and
experience relevant to the procurement requirement, which may include:
(a) technical skills relevant to the procurement requirement;
Public Procurement Regulations 2015 Regulation 12
(b) end user representation;
(c) procurement and contracting skills;
(d) financial management or analysis skills; or
(e) legal expertise.
(4) Members of the Evaluation Committee shall sign a declaration of
impartiality and confidentiality.
11 Establishment of Central Procurement Unit
(1) A Central Procurement Unit shall be established under the direction of
the Procurement Division:
(a) to carry out any procurement if so requested under regulation
(b) to carry out the procurement on behalf of all contracting entities
where the estimated value of the proposed procurement contract
exceeds $ 10,000;
(c) to carry out centrally, the procurement of common use items for
the benefit of all contracting entities .
(2) Where not provided by contracting entities, the Central Procurement
Unit shall provide details in the form of an Annual Procurement Plan of
those major items of expenditure for procurements envisaged to be
purchased in any financial year, and shall also provide details for ad-hoc
procurements in the format provided by the Procurement Division.
(3) In exercising its functions under sub-regulation (1)(c), the Central
Procurement Unit shall organise the purchase of common- use items
either under individual contract or framework contract arrangements on
behalf of selected or all contracting entities .
(4) When conducting procurement under this section, the Central
Procurement Unit shall follow the procurement procedures set down in
PART 3 – RESPONSIBILITIES AND APPROVALS
12 Contracting Entity
(1) Subject to the provisions of these Regulations, the Head of the
contracting entity shall be responsible for procurement with the funds at
Regulation 12 Public Procurement Regulations 2015
(2) In particular, the Head of the contracting entity shall:
(a) approve the annual procurement plan and ensure its dispatch to
the Procurement Division in accordance with the provisions of
(b) approve procurement proposal and ensure its dispatch to the
Procurement Division in accordance with the provisions of
(c) approve the bid evaluation report and contract award
(d) issue the letter of award to the successful bidder and inform
unsuccessful bidders of the result;
(e) sign the procurement contract only upon endorsement of the
Procurement Division where required; and
(f) in respect of all procurement, satisfy himself that these
Regulations have been respected.
13 Procurement Unit of Contracting Entity
(1) The procurement unit shall be responsible for
(a) overall procurement planning on behalf of the contracting entity
and shall submit the annual procurement plan to the head of the
contracting entity for approval;
(b) preparing, in cooperation with the end-user department(s)
procurement proposals of the contracting entity in respect of each
procurement in accordance with the templates issued by the
(c) preparing the draft contract documents in accordance with the
templates issued by the Procurement Division, seeking advice and
guidance from the Central Procurement Unit where appropriate;
(d) ensuring the release of the performance security in accordance
with the terms of the contract.
(2) Where the estimated contract value exceeds $ 7,500.00, the procurement
unit shall forward the procurement proposal to the Central Procurement
Unit and it shall be endorsed by the Head of the Procurement Division
prior to placing a contract.
(3) Where the estimated contract value does not exceed $ 10,000, the
procurement unit shall:
(a) prepare all requests for quotations and bidding documents in
accordance with the templates issued by the Procurement
Public Procurement Regulations 2015 Regulation 13
(b) publish and dispatch requests for quotation;
(c) receive and safeguard quotations;
(d) respond to requests for clarification from bidders;
(e) organize and record site visits, if any;
(f) prepare the evaluation report for the quotations for approval by
the head of the contracting entity;
(g) administer and implement purchase orders and, in doing so, seek
the assistance of the Central Procurement Unit where appropriate;
(h) seek the approval of the Central Procurement Unit for any
proposed variations or amendments to the purchase order;
(i) maintain the procurement file with complete records; and
(j) keep a full record of all procurement carried out to be submitted
in a summary report to the Procurement Division on a quarterly
(4) Where the estimated contract value exceeds $ 10,000, the procurement
unit shall submit the procurement proposal to the Central Procurement
Unit which shall carry out the procurement process in close corporation
with the Procurement Unit of the contracting entity.
14 Operation of Central Procurement Unit
(1) For all contracts where the estimated contract value exceeds $ 10,000,
the central procurement unit shall:
(a) based on the procurement proposal and other information
provided by the Procurement Unit of the contracting entity,
prepare all requests for quotations, invitations to bid and bidding
documents in accordance with the templates issued by the
(b) publish and dispatch requests for quotation and invitations to bid;
(c) receive and safeguard quotations, bids and applications to pre-
(d) respond to requests for clarification from bidders, seeking the
assistance of the procurement unit of the contracting entity where
(e) organize and record pre-bid meetings and/or site visits, if any, and
seeking the assistance of the procurement unit of the contracting
entity where appropriate;
(f) conduct the opening of bids;
Regulation 14 Public Procurement Regulations 2015
(g) prepare the evaluation report for the bids for approval by the head
of the contracting entity;
(h) seek approval of the proceedings from the Procurement Division
which shall be provided within ten working days, subject to the
timely submission by the Central Procurement Unit of the
contracting entity of any additional information required;
(i) publish the contract award notice;
(j) maintain complete records using appropriate tools provided by the
(2) Where the estimated contract value exceeds $100,000, the central
procurement unit shall, following approval of the bid evaluation report
by the head of the contracting entity, submit the file to the Government
Procurement Committee for approval.
15 Evaluation Committee
The duties of the Evaluation Committee shall include
(a) receiving from the procurement unit the bid opening record and bids;
(b) evaluating bids and preparing the bid evaluation report and
recommendations for award of a contract and submitting them to the
procurement unit or central procurement unit as the case may be;
(c) responding to any queries raised by the approving authority; and
(d) any other functions specified under these Regulations.
PART 4 – PROCUREMENT PREPARATION AND
16 Procurement preparation
(1) The contracting entity shall ensure that adequate funds are budgeted and
allotted prior to initiating procurement proceedings including, but not
limited to, any funds required for publication of notices.
(2) Notwithstanding sub-regulation (1), a contracting 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. In this case:
Public Procurement Regulations 2015 Regulation 15
(a) it shall obtain the prior written approval of the CEO Ministry of
Finance and National Planning; and
(b) the fact that funds have not yet been allotted shall be clearly stated
in the bidding documents which shall also indicate the expected
source of funds and when they are expected to be allotted.
(3) All procurement-related functions shall be carried out by persons trained
and knowledgeable in procurement in accordance with the guidelines
and qualification requirements established by the Procurement Division.
(4) A procurement unit shall only use those standard bidding documents
produced and issued by the Procurement Division for procurement under
(5) Where a contracting entity initiates procurement proceedings for a
multi-year contract, which will commit the contracting entity to make
payments in subsequent fiscal years, the contracting entity shall:
(a) obtain the approval of the CEO Ministry of Finance and National
Planning, prior to contract award;
(b) ensure that funds for the current fiscal year are budgeted 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 contracting
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
17 Planning procurements
(1) Contracting entities shall plan procurement with a view to achieving
maximum value for public expenditure so that it is carried out within
available financial resources and other applicable limitations and at the
most favourable time.
(2) Where appropriate, contracting entities shall aggregate procurement
requirements in order to achieve economies of scale.
(3) Before commencing a procurement process, a contracting entity shall:
(a) inquire as to whether or not its requirements can be met by the
transfer of goods from another department;
(b) ensure that an accurate estimate of the cost of the procurement
including the cost of contingencies that might reasonably be
expected to arise under a contract for the procurement has been
Regulation 16 Public Procurement Regulations 2015
(c) commit the amount of the estimate in accordance with the
provisions of the approved Annual Estimates enacted in the
applicable Appropriation Act.
18 Annual procurement plan
(1) Contracting entities shall prepare a procurement plan for each fiscal
year, containing at least the following information:
(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
(e) 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
(f) an indication of whether the goods, works, services or consultancy
services will be procured by the Central Procurement Unit; and
(g) other details as may be relevant to any item in the plan.
(2) Annual procurement planning shall be integrated with applicable
budget processes and submitted to the CEO Ministry of Finance and
(3) Contracting entities shall prepare the annual plan in accordance with the
template provided by the Procurement Division and shall forward the
completed template to the Procurement Division for publication, as
appropriate, on the Procurement Division's website.
19 Procurement Proposal
(1) The contracting entity shall prepare a procurement plan in the form of a
procurement proposal for each individual procurement requirement
above $ 7,500. The procurement proposal shall be prepared by the
Central Procurement Unit for all contracts with an estimated value
exceeding $ 10,000.
Public Procurement Regulations 2015 Regulation 18
(2) The procurement proposal shall include all the information necessary to
enable bidders to submit bids such as, as appropriate:
(a) a description of the requirement, including the schedule required
for delivery, implementation or completion of the goods, works,
services or consultancy services and any division into lots;
(b) the estimated value of the requirement and, where applicable,
(c) the proposed procurement method, in accordance with Part 6 or
Part 9, and a justification for the use of any method other than
competitive bidding or request for proposals for consultant
(d) the source of funding; and
(e) any other relevant information.
(3) Contracting entities shall prepare the procurement proposal in
accordance with the template or templates provided by the Procurement
Division and shall forward the completed template to the Procurement
Division for publication, as appropriate, on the Procurement Division's
20 Estimated cost and artificial division of procurements
(1) The calculation of the estimated value of a procurement contract shall
be based on the total amount payable as estimated by the contracting
entity, including any form of option and any renewals of the contract.
(2) This estimate shall be valid at the moment at which the procurement
notice is sent, as provided for in Regulation 38, or, in cases where such
notice is not required, at the moment at which the contracting entity
commences the contract award procedure.
(3) With regard to works contracts, calculation of the estimated value shall
take account of both the cost of the works and the total estimated value
of the supplies necessary for executing the works and placed at the
contractor's disposal by the contracting entity.
(4) With regard to services contracts, the value to be taken as a basis for
calculating the estimated contract value shall, where appropriate, be the
(a) insurance services: the premium payable and other forms of
(b) design contracts: fees, commission payable and other forms of
Regulation 18 Public Procurement Regulations 2015
(5) A contracting entity shall not artificially divide an object of procurement
with the intention of avoiding the financial thresholds applied in these
Regulations for the purposes of determining the appropriate
21 Division into lots
(1) Notwithstanding the prohibition of regulation 20, contracting 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
bid together, where it is anticipated that the award of several separate
contracts may result in the best overall value for the contracting entity.
(2) 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 inter-(c)changeability between items
procured as separate lots, or would unduly strain contract
(c) where the award of several separate contracts would invalidate
or otherwise restrict any provider’s warranty or liability; or
(d) where the award of several separate contracts would increase the
costs of servicing, maintenance or similar requirements.
(3) Where a requirement which could be procured as a single contract is
divided into lots, the contracting 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 contracting entity.
(4) The estimated value of a contract divided into lots shall be the total value
of all the lots to be procured.
22 Centralized procurement of common use items
(1) The Central Procurement Unit may, pursuant to its responsibilities under
regulation 11(3), organize the central procurement of common-use items
on behalf of selected or all contracting entities.
(2) In so doing, the Central Procurement Unit shall:
(a) compile and/or utilize lists of common-use items identified in sub-
Public Procurement Regulations 2015 Regulation 18
(b) prepare a consultation document to be despatched to each
contracting entity not less than three months before the end of the
fiscal year preceding the year in which the intended procurement
will take place with a view to identifying the annual aggregated
requirements for the centralization of procurement in accordance
with sub-regulation (3);
(c) cause the contracting entities to provide an indication pursuant to
regulation 18(1)(f) of the goods, works, services or consultancy
services that fall within the categories of goods, works, services
or consultancy services established by the Central Procurement
Unit that may be procured by way of centralized procurement;
(d) finalize the procurement plan of the Central Procurement Unit for
the centralized procurement of goods, works, services or
consultancy services and distribute to the concerned contracting
entities not later than one month before the deadline for the
submission of annual procurement plans to the Ministry of
(3) The Central Procurement Unit shall aggregate procurement
requirements, where appropriate, in order to achieve economies of scale.
In deciding where aggregation is appropriate, the Central Procurement
Unit shall consider all relevant factors, including:
(a) which items are of a similar nature and likely to attract the same
(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) which items will be subject to the same bidding requirements and
conditions of contract;
(e) the potential to realise savings in time or transaction costs or to
facilitate contract administration by the contracting entity; and
(f) any other special factors related to the specific item.
(4) Contracting entities which directly purchase works, goods and/or
services from or through the Central Procurement Unit in accordance
with sub-regulation (1) shall be deemed to have complied with these
Regulations insofar as the Central Procurement Unit has complied with
Regulation 20 Public Procurement Regulations 2015
PART 5 – PROCUREMENT REQUIREMENTS AND
23 Determining the object of procurement
(1) The contracting entity's detailed requirements with respect to quality and
quantity, including any certification, testing and test methods or other
means for evaluating the conformity of the performance of the contract
to these requirements shall be set out clearly in the bidding documents.
(2) All relevant bidding and pre-qualification documents shall provide
objective descriptive information that does not unnecessarily favour a
particular bidder by stating the desired performance or output
requirements of the object of the procurement wherever possible rather
than design or descriptive characteristics.
(3) The statement of a contracting entity’s requirements shall include, where
(a) the purpose and objectives of the object of procurement;
(b) a full description of the requirement;
(c) a generic specification to an appropriate level of detail;
(d) a functional description of the
requirements, including any environmental or
(e) performance parameters, including outputs, timescales and
any indicators or criteria by which satisfactory performance can
(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.
(4) References to standards shall where possible be references to
international standards or national standards incorporating international
(5) The description of goods 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
Public Procurement Regulations 2015 Regulation 23
(b) a delivery and completion schedule;
(c) specifications; and
(6) The description of works 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;
(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.
(7) The description of services 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
contracting entity ;
(h) inspection or quality testing requirements or indicators of
successful performance; and
(i) the duration or completion schedule.
(8) The description of consultancy services to be procured under Part 9 shall
include, where appropriate
(a) terms of reference (TOR) defining the objectives, goals, and scope
of the assignment;
(b) if the objectives include transfer of knowledge or training, these
should be specifically outlined along with details of numbers of
staff to be trained;
(c) background information, including a list of any existing relevant
studies and basic data;
Regulation 22 Public Procurement Regulations 2015
(d) a list the services and surveys necessary to carry out the
(e) the deliverables or expected outputs for the assignment;
(f) the role, qualifications or experience required for any key staff;
(g) the management and reporting lines for the service provider,
including administrative arrangements and reporting
(h) any facilities, services or resources to be provided by the
(i) indicators of successful performance; and
(j) the duration of the assignment in terms of man months and period
24 Use of brand names
No requirement or reference is to be made in the requirements to a particular
trademark or name, patent, design or type, specific original, producer or service
provider, unless there is no other practical way of describing the procurement
requirements, and words such as “or equivalent” are included in the
25 Eligibility and non-discrimination
Bidders shall not be excluded from participation in public procurement on the
basis of nationality, race or any other criterion, not having to do with their
qualifications or decisions taken against any bidder under regulations 26 to 27,
provided always that they are not nationals of a country with which commercial
relations has been suspended and/or prohibited either
(i) in accordance with international agreements to which the Kingdom of
Tonga is a party or
(ii) by an act of compliance with a decision of the United Nations Security
Council taken under Chapter VII of the Charter of the United Nations.
26 Permitted bidder qualification criteria
(1) Qualification criteria shall be limited to those criteria which are designed
to demonstrate that a bidder possesses the necessary professional and
technical qualifications and competence, financial resources,
equipment and other physical facilities, managerial capability,
Public Procurement Regulations 2015 Regulation 27
experience in the procurement object, business reputation and
personnel, to perform the contract.
(2) Qualification criteria shall not be unduly restrictive or designed to
reduce competition and shall be prepared for each procurement
requirement, taking into account the size, complexity and technical
requirements of the proposed contract.
(3) The contracting entity shall clearly state the qualification criteria in all
bidding documents and shall, where it deems fit, require bidders to
provide signed statements or documentary evidence to certify their
(4) The contracting entity shall not impose any requirement as to
qualifications in the invitation to bid other than a requirement specified
in this regulation.
27 Evidence of Qualification criteria
(1) Subject to sub-regulation 26(2), the following evidence may be
requested from bidders to satisfy the qualification criteria established in
the bidding documents.
(2) Evidence of the bidders' technical abilities may be furnished by one or
more of the following means according to the nature, quantity or
importance, and use of the goods, works or services, including evidence
(a) experience and reliability, including evidence of past
(b) financial resources, equipment and other physical facilities;
(d) managerial capability;
(e) possession of the necessary professional and technical
qualifications and competence;
(f) samples, descriptions and/or photographs;
(g) certificates drawn up by official quality control institutes or
agencies of recognised competence attesting the conformity of
products clearly identified by references to specifications or
(h) subject to the right of the bidder to protect its intellectual property
rights and trade secrets, possession of the requisite intellectual
property rights or trade secrets.
Regulation 24 Public Procurement Regulations 2015
(3) Evidence of the bidder's legal capacity to perform the contract may
be furnished by any of the following means, including evidence that:
(a) it has satisfied all the legal requirements to carry on business in
the Kingdom and, if the bidder has its headquarters outside the
Kingdom, of his entitlement to carry on business in that
(b) the bidder is not insolvent, in bankruptcy, in receivership or under
(c) legal proceedings have not been taken and are not anticipated to
be taken that would materially affect the ability or the legal
capacity of the bidder to carry out the contract.
(4) As applicable, evidence not older than 6 months from the date of
submission may be provided that the bidder is in good standing with the
Government and has fulfilled its obligations, to pay taxes, levies, license
fees and other fees or other similar amounts.
(5) All bidders shall provide evidence of their integrity to the effect that the
bidder and any director, officer, manager or supervisor of the bidder
hasthey have not been, within a period of 3 years preceding the date of
issuance of the invitation to bid:
(a) convicted of any criminal offence, whether in the Kingdom or
(i) relating to his their professional conduct;
(ii) relating to the making of false statements or
misrepresentations as to his their qualifications to enter into
a procurement contract;
(iii) involving dishonesty; or
(iv) under anti-corruption legislation; or
(b) or debarred by administrative or judicial proceedings from
participating in procurements, whether in the Kingdom or
Bidders may be required to provide evidence of their integrity including,
if appropriate, for any director or any person having powers of
representation, decision or control in respect of the bidder, as specified
in the bidding document.
(6) In respect of sub-regulations (3) and (5), such evidence may comprise
the production of
(a) documents issued by a competent judicial or administrative
authority in the country of origin of the tenderer showing that
Public Procurement Regulations 2015 Regulation 27
these requirements have been met, including extracts from
‘judicial records’ where applicable, or
(b) where the country in question does not issue such documents, of
a declaration on oath or solemn declaration made by the person
concerned before a competent judicial or administrative authority,
a notary or a competent professional or trade body, in the country
of origin of the tenderer.
PART 6 – METHODS OF PROCUREMENT
28 Selection of procurement method
(1) Contracting entities shall select the most appropriate method of
procurement for each requirement as part of the procurement planning
(2) The choice of procurement method shall take into account:
(a) the estimated value of the procurement;
(b) the potential sources for the procurement, notably the
competitiveness of the national and international market for the
goods, works or services and the likely interest of potential
national and international bidders, given the size and nature of the
(c) the nature of the goods, works or services required; and
(d) the circumstances surrounding the procurement, such as the
existence of an emergency need or of situations which might
justify use of limited bidding.
(3) Consultant services shall be procured by the request for proposals
method in accordance with the provisions contained in Part 9 of these
29 International Procurement
(1) When the estimated contract amount is higher than $ 150,000 in the case
of goods or services or higher than $ 1,000,000 in the case of works:
(a) any procurement notice shall be published in accordance with
(b) contracting entities shall allow sufficient time for the invitation to
reach candidates and to enable them to prepare and submit
Regulation 26 Public Procurement Regulations 2015
applications to prequalify and bids in accordance with the
instructions given in the bidding documents;
(c) bidders shall be permitted to express their bids, as well as any
security documents to be presented by them, in their respective
domestic currencies, or in a currency widely used in international
trade and stated in the bidding documents;
(d) general and special conditions of contract shall be of a kind
generally used in international trade; and
(e) technical specifications shall, to the extent compatible with
national requirements, be based on international standards.
This regulation applies to competitive bidding, selective bidding,
restricted bidding and to the procurement of consultancy services under
30 Competitive Bidding Method
(1) Public procurement of goods, works and services shall be undertaken by
means of single stage competitive bidding, advertised in accordance
with regulation 38 to which equal access shall be provided to all eligible
and qualified bidders without discrimination.
(2) The competitive bidding method shall be used for all contracts whose
value is equal to or above:
(a) $ 100,000 in the case of works; and
(b) $ 50,000 in the case of goods and services.
(3) Methods of procurement other than competitive bidding are permitted
only in the circumstances identified in regulations 31 to 35.
(4) When a method of procurement other than competitive bidding is used,
the contracting entity shall include in the record of the procurement
proceedings a written justification of the decision to utilise the
procurement method, including the grounds for taking that decision.
31 Two stage Competitive Bidding Method
(1) Competitive bidding may be held in two stages in the following cases:
(a) when it is not feasible to define fully the technical or
contractual aspects of the procurement to elicit competitive bids;
(b) when, because of the complex nature of the goods, works or
services to be procured, the contracting entity wishes to consider
various technical or contractual solutions, and to discuss with
Public Procurement Regulations 2015 Regulation 32
bidders about the relative merits of those variants before deciding
on the final technical or contractual specifications.
(2) In the first stage of the two stage competitive bidding method, the
contracting entity may engage in discussions with any or all bidders
whose proposals satisfy the conditions set forth in the bidding
documents with a view to understanding the proposals or to indicate
changes required to make them acceptable and to seek the bidder’s
willingness to make such changes, and minutes of these discussions shall
form part of the procurement records.
(3) the end of the first stage, the contracting entity may:
(a) reject those bids which do not, and cannot be changed to meet the
basic requirements, minimum performance, or required
completion time or have any other weakness which makes the
bid substantially non responsive; or
(b) modify the technical specifications, evaluation criteria, and
contract conditions, while seeking to maximize competition and
articulate appropriate evaluation methodology.
(4) In the second stage, the contracting entity shall invite bidders whose bids
have not been rejected to submit final bids with prices responsive to the
revised bidding documents.
(5) A bidder, not wishing to submit a final bid, may withdraw from the
bidding proceedings without forfeiting any bid security that the bidder
may have been required to provide, and the final bids shall be evaluated
and compared in accordance with the criteria and methodology included
in the revised documents.
(6) The procedures for the competitive bidding method apply to the two-
stage competitive bidding method, except to the extent they are modified
by this regulation.
32 Selective Bidding Method
(1) Selective bidding means competitive bidding preceded by pre-
qualification and may be used, in the case of particularly high
value of complex procurement with a view to identifying, prior to the
submission of bids, those bidders that are qualified.
(2) The requirements and criteria for assessing the qualifications of bidders
in selective bidding shall be those referred to in regulations 25 to 27.
(3) In the pre-qualification stage the:
(a) contracting entity shall provide prequalification documents to all
bidders responding to the invitation to prequalify;
Regulation 28 Public Procurement Regulations 2015
(b) prequalification documents shall provide bidders with the
information required to prepare and submit applications for
(c) contracting entity shall in accordance with regulation 53 41
respond promptly to any request by a bidder for clarification of
the prequalification documents that is received by the contracting
entity within a reasonable time prior to the deadline for the
submission of applications to prequalify.
(4) The contracting entity shall make a decision with respect to each
application to prequalify and all bidders that have been prequalified shall
be invited to submit bids in the procurement proceeding.
(5) At any time prior to contract award, the contracting entity may require a
bidder that has been prequalified to demonstrate again its qualifications
in accordance with the same criteria used to prequalify such bidder and
the contracting entity shall disqualify any bidder that fails to demonstrate
again its qualifications if requested to do so.
(6) In all other respects, the provisions of the single stage competitive
bidding method apply.
33 Restricted Bidding Method
(1) Restricted bidding may be held in the following cases:
(a) when the goods, works or services are only available from a
limited number of bidders; or
(b) when the time and cost of considering a large number of bids is
disproportionate to the estimated value of the procurement which
shall depend on the nature of the procurement.
(2) In the case of restricted bidding, the contracting entity shall invite bids
(a) all potential bidders where restricted bidding is used in
accordance with sub-regulation (1)(a); or
(b) sufficient bidders to ensure effective competition and, in any case
at least three bidders, where restricted bidding is used in
accordance with sub-regulation (1)(b).
(3) In selecting bidders to be invited to bid, the contracting entity may use:
(a) a registration system of supplier or contractors lists maintained
in accordance with the procedure established by the
(b) lists of pre-qualified bidders;
Public Procurement Regulations 2015 Regulation 34
(c) its own knowledge of the market; or
(d) any other appropriate sources of information.
(4) Where the contracting entity uses restricted bidding in accordance with
sub- regulation (1)(b), it shall also publish a notice, in accordance with
regulation 38 of these Regulations, which shall state:
(a) the name of the contracting entity and the nature of the
(b) that the contracting entity is using restricted bidding on the
grounds enumerated in this regulation; and
(c) the deadline for any requests to participate.
(5) In all other respects, the provisions of the single stage competitive
bidding method apply.
34 Limited Bidding Method
(1) Contracting entities may use the limited bidding method (or direct
sourcing when only one bidder is available) in the following cases:
(a) when no suitable bids have been submitted in response to a
competitive or selective bidding procedure, on condition that the
requirements of the initial bid are not substantially modified;
(b) when, for technical or artistic reasons, or for reasons connected
with protection of exclusive rights, the contract may be performed
only by a particular supplier and no reasonable alternative or
(c) for reasons of extreme urgency brought about by events not
attributable to and unforeseen by the contracting entity, the
products or services could not be obtained in time by means of
competitive or selective bidding procedures;
(d) for additional deliveries of goods or services by the original
supplier where a change of supplier would compel the contracting
entity to procure equipment or services not meeting requirements
of inter- changeability with already existing equipment or services
procured under the initial procurement and such separation would
cause significant inconvenience or substantial duplication of costs
to the contracting entity;
(e) when a contracting entity procures prototypes or a first product or
service which are developed at its request in the course of, and
for, a particular contract for research, experiment, study or
Regulation 30 Public Procurement Regulations 2015
(f) when additional services which were not included in the initial
contract but which were within the objectives of the original
bidding documents have, through unforeseen circumstances,
become necessary to complete the services described therein,
provided that the total value of contracts awarded for the
additional services shall not exceed 50 percent of the amount of
the original contract;
(g) for new services consisting of the repetition of similar services
which conform to a basic project for which an initial contract was
awarded following an open or selective procurement method, and
for which the contracting entity has indicated in the notice of
intended procurement that a limited bidding method might be
used in awarding contracts for such new services;
(h) for products purchased on a commodity market;
(i) for purchases made under exceptionally advantageous conditions
which only arise in the very short term in the case of unusual
disposals such as arising from liquidation, receivership or
bankruptcy and not for routine purchases from regular suppliers;
(j) for contracts below $ 7,500.
(2) Under this method:
(a) the contracting entity shall prepare a written description of its
needs and any special requirements as to quality, quantity, terms
and time of delivery;
(b) a bid shall be invited from either one, or where possible, more
(c) where feasible, a time limit as may be given to the bidders to
prepare and submit their bids or agreed by mutual agreement;
(d) the compliance of the offer or offers with the specifications, terms
and conditions shall be considered; and
(e) negotiations to bring down the prices may be carried out if the
prices offered are deemed to be excessive or substantially in
excess of the prevailing market prices.
35 Request for Quotations Method
(1) The request for quotations method may be used by any contracting entity
for the procurement of goods and works:
Public Procurement Regulations 2015 Regulation 36
(a) where the procurement is for readily available commercially
standard goods, not specially manufactured to the particular
specifications of the contracting entity; and
(b) when the estimated value of the procurement is between :
(i) $ 7,500 and $ 100,000 in the case of works, and
(ii) $ 7,500 and $ 50,000 in the case of goods and services.
(2) Under this method, quotations shall be requested in writing from as
many bidders as practicable, but from at least three bidders, using the
standard documents produced by the Procurement Division.
(3) The written request for quotations shall contain a clear statement of the
requirements of the contracting entity as to quality, quantity, terms and
time to delivery, as well as any other special requirements.
(4) Bidders shall be given adequate time to prepare and submit their
quotations, but each bidder shall be permitted only one quotation which
may not be altered or negotiated.
(5) Quotations shall be submitted in writing and may be submitted
(6) A purchase order shall be placed with the bidder that provided the
lowest- priced quotation meeting the delivery and other requirements of
the contracting entity.
(7) A purchase order shall include the:
(a) quoted price;
(b) contract number;
(c) name of the contractor or of the supplier;
(d) name of the officer of the contractor or of the supplier who signed
(e) terms; and
(f) date of delivery.
PART 7 – PROCUREMENT PROCEEDINGS
36 Form of communication
Communications between bidders and contracting entities shall be in writing
and shall be in either the English or Tongan language.
Regulation 32 Public Procurement Regulations 2015
37 Invitations to bid
(1) The Limited Bidding Method shall be conducted in accordance with
(2) The Requests for Quotations Method shall be conducted in accordance
with regulation 35.
(3) In all other cases, bids shall be invited:
(a) through the publication of an announcement of bidding
proceedings in the case of competitive bidding;
(b) from the list of pre-qualified bidders in the case selective bidding;
(c) from a shortlist of bidders in the case of restricted bidding; or
(d) through the publication of an announcement of bidding
proceedings in the case of restricted bidding pursuant to
38 Publication of procurement notices
(1) The notice of invitation to bid or to pre-qualify, as the case may be, shall
published in at least one national newspaper which shall be of wide
enough circulation to reach
(a) 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;
(c) to the extent feasible, published on the internet, including any
website established by the Procurement Division.
(2) Where international competitive bidding is used, the notice shall also be
placed in at least two English language newspapers or other printed
media with adequate circulation to attract foreign competition or on
widely read internet websites.
(3) Where the contracting entity considers it is necessary to ensure wide
competition, it may send the notice directly to potential bidders after the
date of publication of the notice. The contracting entity shall keep a
record of any bidders to whom the notice is sent directly, which shall
form part of the procurement record.
(4) The invitation to bid or, as the case may be, the invitation to prequalify
shall include information regarding:
Public Procurement Regulations 2015 Regulation 39
(a) identity and address of the contracting entity and the contact
details of the person from whom further information can be
(b) description and time-frame of the procurement, including the
place of delivery of goods or services, and the location of any
(c) manner of obtaining and the price of the bidding documents, or,
if applicable, the prequalification documents;
(d) place and deadline for submission of bids, or of applications
to prequalify; and
(e) such other matters as may be prescribed in the standard forms
issued by the Procurement Division.
39 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
(3) The minimum bidding period shall be:
(a) 10 days for Requests for Quotation (regulation 35);
(b) 30 days for competitive bidding (regulation 30);
(c) 45 days for international competitive bidding (regulation 29);
(d) 20 days for selective and restricted bidding (regulations 32 and
(e) 30 days for selective bidding, where the bidding is international;
(f) 30 days for restricted bidding under regulation 33(1)(b), where
the bidding is international.
(4) In selective bidding, bidders shall be given a minimum of 30 days
following a notice to pre-qualify to submit their pre-qualification
(5) In determining the appropriate bidding period for each requirement, the
contracting entity shall take into account, in addition to the minimum
(a) the time required for preparation of bids, taking into account the
level of detail required and the complexity of bids;
Regulation 34 Public Procurement Regulations 2015
(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 potential bidders and the time required to obtain
the bidding document and for the delivery and submission of bids
to the contracting entity; and
(d) any restrictions relating to the time the goods, works or services
40 Bidding documents
(1) A contracting entity shall use standard bidding documents as may be
prescribed including any manuals or guidelines pertaining thereto and
issued by the Procurement Division.
(2) The contracting entity shall provide, in an expeditious and non
discriminatory manner, the bidding documents to all potential bidders
that respond to the invitation to bid or, in the case of selective bidding,
to all bidders that have been prequalified.
(3) The price that may be charged for the bidding documents shall reflect
only the cost of printing and distributing the documents and, where
bidding documents are delivered by electronic means, they shall be free
(4) 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 procuring entity. In particular, the bidding documents shall
inform bidders concerning:
(a) the description and time frame of the procurement, including, but
not limited to the contractual terms of the procurement, and the
manner of entry into force of the contract;
(b) where not already determined through pre-qualification in the
case of selective bidding, bidder qualification requirements and
the documentation required to satisfy those requirements which
will require the bidder to show that it possesses the necessary
professional and technical qualifications and competence,
financial resources, equipment and other physical facilities,
managerial capability, experience in the procurement object,
business reputation and personnel, to perform the contract as set
out in the prescribed regulations and standard bidding documents;
(c) information as to site visits and pre-bid conferences;
(d) instructions for preparation and submission of bids, including the
deadline for submission of bids, time and place of bid opening;
Public Procurement Regulations 2015 Regulation 41
(e) components to be reflected in the price, the currency or currencies
in which the bid price may be (e)stated, and the currency
and related exchange rate to be used for comparison of bids;
(f) the criteria and methodology for evaluation of bids and the
selection of the successful bidder in accordance with the
provisions of Regulation 56;
(g) the preference, if any, for domestic goods and contractors as the
Procurement Division may prescribe;
(h) any grouping of goods, works or services into lots and packages
and the manner of evaluation of the lots and packages;
(i) whether alternatives to the technical or contractual specifications
would be considered and, if so, how those alternatives would be
(j) where suppliers are permitted to submit bids for only a portion of
the goods, works or services to be procured, a description of the
portion or portions for which bids may be submitted;
(k) the required validity period of bids;
(l) the amount and acceptable forms of any required bid,
performance or other security;
(m) the conditions of contract which will be entered into with the
(n) a notice of conflict-of-interest restrictions and anti-fraud and
(o) the manner in which bidders may obtain review of actions,
omissions and decisions of the procurement unit; and
(p) such other matters as may be required in regulations, manuals and
standard forms as may be prescribed.
(5) For the purposes of subsequent communications, the contracting entity
shall make a record of the name, postal address, telephone and fax
number and email address of all bidders to whom an invitation to bid is
issued together with the details of the relevant contact person and shall
file a copy of it in the procurement records.
(1) Clarifications of the bidding documents may be requested in writing by
any bidder up to 5 days prior to the deadline for the submission of bids.
(2) The contracting entity shall respond promptly and in writing to any
request by a bidder for clarification of the bidding documents and in any
Regulation 36 Public Procurement Regulations 2015
event no later than 2 days prior to the deadline for the submission of bids
(3) Responses to requests for clarification shall be communicated
simultaneously and in writing to all bidders participating in the
(4) Contracting entities may make modifications to the bidding documents
at any time prior to the deadline of the submission of bids.
(5) If necessary to allow bidders to do so, the contracting entity shall extend
the deadline for submission of bids so as to allow bidders an opportunity
to take modifications into account in preparing their bids.
42 Alternative bids
(1) Alternative bids shall not be permitted, except where specifically
indicated in the bidding document.
(2) The contracting 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.
(3) Alternative bids may be permitted in areas of rapidly changing
technology or where a need could be satisfied in a number of
different ways and the contracting entity wishes to encourage cost
efficient and technically innovative approaches by bidders.
(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 shall:
(a) meet the objectives or 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
(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
43 Domestic preference
(1) Where so indicated in the bidding document and strictly in accordance
with any rules or schemes for domestic preference issued by the GPC
Public Procurement Regulations 2015 Regulation 44
through instructions or otherwise, a margin of preference may be applied
to eligible bids.
(2) Any rules or schemes issued under sub-regulation (1) 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) documentation required as evidence of eligibility for the margin
of preference; and
(c) percentage of the margin of preference and the manner in which
it will be applied during the evaluation.
(3) The percentage of preference in rules or schemes issued by the
Procurement Division shall be between five and ten percent. The GPC
may review these percentages annually.
44 Cancellation of procurement proceedings or rejection of bids
(1) The cancellation of procurement proceedings shall be avoided whenever
possible, but is permitted where there is written finding that:
(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 procurement proceedings is
(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) If so specified in the bidding documents or in a request for proposals or
a request for quotation a contracting entity, after obtaining the approval
of the Head of a contracting entity, may reject all bids, proposals or
quotations at any time prior to their acceptance.
(3) Such grounds for rejection are justified when the bids, proposals or
quotations submitted are not substantially responsive, or where there is
evidence of lack of competition.
(4) A contracting entity shall upon request by the bidder communicate the
grounds for rejecting a bid.
Regulation 38 Public Procurement Regulations 2015
(5) A contracting entity shall incur no liability towards bidders solely by
virtue of its invoking this regulation.
(6) Notice of the rejection shall be given promptly to all participating
(7) If a contracting entity decides to annul the procurement proceedings
before the bid submission deadline, all bids received shall be returned
unopened to the bidders already submitting them.
45 Unsuccessful procurement
(1) Where no responsive bids are received or procurement proceedings are
otherwise unsuccessful, the contracting entity shall investigate the failed
procurement proceedings and record in the procurement record the
reasons why the procurement was unsuccessful and the course of action
(2) The investigation should consider all relevant issues, including whether
(a) the bidding period was sufficient, considering the factors listed
in regulation 39(5);
(b) the requirements of the bidding documents and the terms and
conditions of the proposed contract were clear, non-
discriminatory, proportionate, reasonable and not so excessive as
to deter competition;
(c) any invitation notice was published in an appropriate publication
and on the required date;
(d) there was any delay in issuing the bidding documents;
(e) any amendments or clarifications to the bidding documents
allowed sufficient time for bidders to take them into account in
preparing their bids;
(f) there were other extraneous events or circumstances, which may
have affected the ability of bidders to respond;
(g) the evaluation process was conducted in accordance with these
Regulations and the bidding documents and whether officers
responsible for the evaluation had adequate skills and resources;
(h) there is any suspicion of collusion between potential bidders; and
(i) the original choice of procurement method was appropriate.
(3) The contracting entity shall take any appropriate action suggested by the
cause or causes of failure which may include, but are not limited to-
(a) the use of an alternative method of procurement;
Public Procurement Regulations 2015 Regulation 46
(b) amendments to the bidding 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 bidding documents; and
(d) the introduction of international competition.
PART 8 – BID SUBMISSION, BID OPENING,
EVALUATION AND AWARD IN COMPETITIVE BIDDING
46 Submission of bids or applications to pre-qualify
(1) A bid or application to pre-qualify, as the case may be, shall be submitted
in writing, duly signed and in a sealed envelope.
(2) Bids or applications received after the deadline for submission of bids
shall be returned unopened.
(3) Invitations for prequalification and bidding documents shall permit
submission of applications to prequalify or bids by hand or mail or by
courier at the option of the bidder.
(4) Notwithstanding sub-regulation (3) and subject to any e-procurement
policy laid down by the Procurement Division, the bidding documents
may authorise other methods of submission of bids, such as by electronic
mail, as long as the confidentiality and security of bids are assured.
(5) Bids shall remain valid for the period of time indicated in the bidding
documents, but modification or withdrawal of a bid during the bid
validity period is subject to forfeiture of the bid security.
(6) The validity period of a bid may be deemed extended only on the basis
of the agreement of the bidder concerned and a bidder that agrees to an
extension of the validity period of its bid shall also obtain a
corresponding extension of the bid security, if such a security was
47 Bid security
(1) A contracting entity may require bid securities, when applicable, in order
to deter irresponsible bids and encourage bidders to fulfil the conditions
of their bids.
(2) The bidding documents shall state any requirement for a bid security.
Regulation 40 Public Procurement Regulations 2015
(3) The value of any required bid security shall be expressed as a fixed
amount, which maybe up to three percent of the estimated value of the
(4) In determining the amount of bid security required, the contracting entity
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, and which shall be high enough to deter
irresponsible bids, but not so high as to discourage competition.
(5) The bidding documents shall state that bid securities shall be:
(a) in accordance with the format and wording provided in the
(b) in a form acceptable to the contracting entity, which may be:
(i) a certified Bank cheque;
(ii) a bank guarantee; or
(iii) any alternative form acceptable to the contracting entity,
including any forms permitted under schemes issued by the
Procurement Division to facilitate access to securities by
small enterprises; and
(c) valid for the period prescribed in the bidding document, which
shall normally be 28 days beyond the expiry of the bid validity
(6) A bid security shall be forfeited by the bidder only in the event of -
(a) a modification or withdrawal of a bid after the deadline for
submission of bids and during its period of validity;
(b) refusal by a bidder to accept a correction of an arithmetical
error appearing on the face of the bid;
(c) failure by the successful bidder to sign a contract in accordance
with the terms set forth in the bidding documents; or
(d) failure by the successful bidder to provide a security for the
performance of the contract if required to do so by the bidding
(7) The contracting entity shall release bid securities promptly to
unsuccessful bidders upon expiry of the term of the security or formation
of a contract with the successful bidder and submission of any required
performance security, whichever is earlier.
(8) The bid security of the successful bidder shall not be released, until any
required performance security has been received.
Public Procurement Regulations 2015 Regulation 48
48 Amendment or withdrawal of bid
(1) A bidder may amend or withdraw a bid by submitting a notice of
amendment or withdrawal to the contracting entity not later than the date
and time for the close of submission of bids.
(2) The notice of amendment or withdrawal shall be submitted in an
envelope identifying the invitation to bid and clearly labelled
“Amendment of Bid” or “Withdrawal of Bid” and shall comply with any
additional directions, if any, in the invitation to bid.
49 Bid opening
(1) Bids shall be opened by the contracting entity at the time and place
indicated in the bidding documents, and the time of bid opening shall
coincide with the deadline for submission of bids, or follow immediately
thereafter, allowing a minimum time interval for logistical reasons.
(2) Bidders or their representatives may attend the bid opening, where the
name of the bidder, the total amount of each bid, any discounts or
alternatives offered, and the presence or absence of any bid security, if
required, and essential supporting documents shall be read out loud and
(3) A copy of the record shall be made available to any bidder on request.
(4) No decision regarding the disqualification or rejection of any bid shall
be taken or announced in the bid opening session.
(5) Following opening of the bids, and until the preliminary decision on
award has been notified to the successful bidder, a bidder shall not make
any unsolicited communication to the procurement unit or try in any way
to influence the contracting entity’s examination and evaluation of the
Notwithstanding any law to the contrary, information relating to the content of
pre- qualification applications, bids or to the examination, clarification,
evaluation and comparison of bids shall not be disclosed to suppliers,
contractors, service providers or consultants or to any other person not
involved officially in the examination, evaluation or comparison of bids or in
the decision on which bid should be accepted.
Regulation 42 Public Procurement Regulations 2015
51 Examination and evaluation of bids
(1) The purpose of bid evaluation process shall be to determine which of the
bids received are responsive and thereafter compare the responsive bids
against each other to select the best value for money bid in accordance
with section 56.
(2) Following the opening of bids, the contracting entity shall first examine
the bids in order to determine whether the bids are complete and
responsive to the requirements of the bidding documents. This
preliminary examination will determine that:
(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
(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;
(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
(3) Bids are responsive where they are found to be ‘substantially
(4) Bids are substantially responsive where:
(a) the bidders fulfil the conditions of eligibility and qualification, if
any laid down in the bidding documents;
(b) the bids comply with the terms and conditions set out in the
bidding documents, and are complete with the required
information and duly filled in forms prescribed in the bidding
(c) the bids respond to the terms, conditions and technical
specifications detailed in the bidding documents without
“material deviation or reservation”.
(5) A material deviation or reservation is one:
(a) which affects in any substantial way the scope, quality or
performance of the assignment under bid; or
Public Procurement Regulations 2015 Regulation 50
(b) which limits in any substantial way and inconsistently with the
bidding documents, the contracting entity’s rights or the bidder’s
obligations under the contract; or
(c) whose rectification would affect unfairly the competitive position
of other bidders presenting responsive bids
(6) 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.
(7) Bids which are not complete, not signed, not accompanied by a bid
security in the prescribed form, if one is required, or not
accompanied by essential supporting documents such as business
registration certificates, business licences and tax clearance certificates
as stipulated in the bidding documents, or are substantially non-
responsive to the technical specifications or contract conditions or
other critical requirements in the bidding documents, shall be rejected
and excluded from further evaluation and comparison.
(8) In selective bidding, a bid received from any entity other than the
prequalified bidders shall be rejected and excluded.
(9) Bids not excluded from consideration under sub-regulations (2) and (3),
shall be evaluated in accordance with the criteria and methodology
stated in the bidding documents.
(10) The contracting entity may, in accordance with Regulation 41, seek
clarification in writing from any bidder to facilitate evaluation but shall
neither ask or permit any bidder to change the price or any other aspect
of the bid and if a bidder amends its bid in any manner, such a bid shall
be rejected and its bid security forfeited.
(11) In carrying out the evaluation, if there are minor deviations in any bid
which did not merit rejection of the bid at the earlier stage, the cost of
such minor deviation shall be ascertained, if possible, and the evaluated
cost of such a bid shall then be compared to those of other bids to
determine the lowest evaluated bid.
(12) In selective bidding, the qualifications of the lowest evaluated bidder
shall be verified again to take account of any change since the original
Regulation 44 Public Procurement Regulations 2015
52 Correction of Non-Conformities, Errors and Omissions
(1) Where a bid is substantially responsive, the contracting 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 contracting 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 Bidder who does not accept the correction of an arithmetical error
shall be rejected and its bid security may be forfeited.
53 Clarification of bids
(1) The contracting 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
(a) amend its bid price, except to accept the correction of arithmetic
(b) change the substance of the bid; or
(c) substantially alter anything which is a deciding factor in the
(4) Any clarification received which is not in response to a request from the
contracting 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.
(1) The contracting entity shall disqualify a bidder if it finds that the
information submitted in a bid concerning its qualifications is false or
(2) The contracting entity may disqualify a bidder if it finds that the
information submitted in a bid concerning its qualifications is materially
inaccurate or materially incomplete.
Public Procurement Regulations 2015 Regulation 55
55 Technical Responsiveness
(1) The Evaluation Committee or Procurement Unit as the case may be shall
assess technical responsiveness by comparing each bid to the technical
requirements of the description of goods, works or services in the
bidding document, to determine whether the bids are substantially
(2) This assessment shall determine whether bids are, or are not,
substantially responsive to the technical standard defined in the bidding
document 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 assessment shall not take into account any requirements which were
not included in the bidding documents.
(5) Any material deviations shall result in rejection of the bid and such bids
shall not be subject to further evaluation.
(6) Non material deviations may be corrected in accordance with Regulation
52 or clarified in accordance with Regulation 53.
56 Evaluation of bids
(1) Bids will be evaluated on the basis of best value for money. The criteria
on which the contracting entities shall assess best value for money shall
(a) the lowest evaluated price only, or
(b) a combination of price together with various award criteria linked
to the subject-matter of the contract in question.
(2) For the purposes of comparison, bid prices shall first be evaluated. 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 document;
Regulation 46 Public Procurement Regulations 2015
(c) making adjustments for any non-material non-conformity, error
or omission in accordance with regulation 52;
(d) converting all bids to a single currency, using the currency and the
source and date of exchange rate indicated in the bidding
(e) applying any margin of preference indicated in the bidding
document, in accordance with regulation 43.
(3) When applying Regulation 56(1)(a), bids shall be compared by ranking
them according to their evaluated price and determining the bid with the
lowest evaluated price.
(4) When applying Regulation 56(1)(b), in addition to price the award
criteria to be applied include:
(a) quality, including technical merit, functional characteristics,
accessibility, social or environmental characteristics and trading
and its conditions;
(b) organisation, qualification and experience of staff assigned to
performing the contract, where the quality of the staff assigned
can have a significant impact on the level of performance of the
(c) after-sales service and technical assistance, delivery conditions
such as delivery date, delivery process and delivery period or
period of completion;
(d) cost-effectiveness based on life-cycle costing including costs
relating to acquisition, costs of use, such as consumption of
energy and other resources, maintenance costs, and end of life
costs such as collection and recycling costs.
(5) Non-price award criteria shall whenever possible be quantified in
monetary terms or expressed in the form of pass or fail requirements and
set out in full in the procurement notice or in the bidding documents.
Where it is not possible to quantify those criteria in such terms, the
procurement notice or the bidding documents shall either
(a) specify the relative weighting which it gives to each of the criteria
chosen to determine the best value for money, expressed by
providing for a range with an appropriate maximum spread, or
(b) specify the criteria in descending order of importance.
Public Procurement Regulations 2015 Regulation 57
57 Application of domestic preference
(1) Where a domestic preference is applied pursuant to regulation 43,
responsive bids shall, for the purposes of comparison, be classified in
one of the following two groups:
(a) Group A: bids exclusively offering goods manufactured in Tonga
where the bidder establishes to the satisfaction of the contracting
entity that labour, raw material, and components from within
Tonga will account for 30 percent or more of the EXW price of
the product offered; and
(b) Group B: bids offering goods manufactured abroad that have been
already imported or that will be directly imported.
(2) All evaluated bids in each group shall be compared to determine the
lowest in each group. Such lowest evaluated bids shall be compared with
each other and if, as a result of this comparison, a bid from Group A is
the lowest, it shall be selected for the award.
(3) If as a result of this comparison, the lowest evaluated bid is a bid from
Group B, the lowest evaluated bid from Group B shall be further
compared with the lowest evaluated bid from Group A after adding to
the evaluated price of goods offered in the bid from Group B, for the
purpose of this further comparison only, an amount equal to the stated
domestic margin of preference to the CIP bid price. The lowest evaluated
bid determined from this last comparison shall be selected.
58 Prohibition of negotiation
(1) Except as provided in sub-regulation (2)(b), there shall be no negotiation
between the contracting entity and a supplier or contractor with respect
to a bid submitted by the supplier or contractor.
(2) If the lowest evaluated responsive bid exceeds the budget for the
contract by a substantial margin, the contracting entity shall investigate
the causes for the excessive cost and may:
(a) consider requesting new bids; or
(b) subject to approval by the Head of the contracting entity, negotiate
a contract with the lowest evaluated bidder to try to obtain a
satisfactory contract through a reduction in the scope which can
be reflected in a reduction of the contract price.
Regulation 48 Public Procurement Regulations 2015
59 Contract award
(1) The contract shall be awarded to the bidder having submitted the bid
providing the best value for money in accordance with section 56.
(2) Prior to the expiry of the period of bid validity, the contracting entity
shall notify the successful bidder of the proposed award, which shall
specify the time within which the contract shall be signed, subject to any
intervening complaints filed in accordance with Part 11.
(3) In the case of contracts awarded by way of competitive bidding and in
the case of any contract with a value in excess of $ 10,000, notice shall
be given to the other bidders, specifying the name and address of the
proposed successful bidder and the price of the contract, but the contract
shall not be signed until at least 14 days have passed following the giving
of that notice.
(4) If the bidder whose bid has been accepted fails to sign a written contract
when required to do so or fails to provide any required security for the
performance of the contract prior to the time for contract signature, the
contracting entity shall accept the next ranked bidder from among the
remaining bids that are in force, but in selecting the next ranked bidder,
the contracting entity shall comply with the provisions of this regulation,
as well as with the notice requirements provided in sub-regulation (3).
(5) Contracts shall be signed by the Head of a contracting entity or a person
delegated by him, and shall come into effect only when any endorsement
or approval, as the case may be, required by these Regulations has been
obtained in writing. Failure to obtain such endorsement or approval
renders the person signing the contract personally liable for all
obligations arising there under.
(6) Contracts shall come into effect as stated in the Contract Agreement
which shall state that no contract subject to endorsement and or approval
under these Regulations shall come into effect until such endorsement
or approval has been obtained in writing. Contract Agreements shall
further state that conclusion of contracts in the absence of such
endorsement or approval or otherwise in contravention of these
Regulations shall be signed in the personal capacity of the head of the
contracting entity who shall remain personally liable for all obligations
arising there under.
60 Performance security
(1) A contracting entity may request a performance security, where
applicable, to secure the contractor’s obligation to fulfil the contract and
any requirement for a performance security shall be set out in the bidding
Public Procurement Regulations 2015 Regulation 61
documents and contract, such security to be provided prior to 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 and shall be
no more than ten percent of the contract value.
(3) In determining the amount of performance security required, the
contracting entity 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 contracting 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 contractor’s progress in
delivering or completing the goods, works or services to which the
(5) The bidding documents and contract shall state that the performance
security shall be:
(a) in accordance with the format and wording provided in the
(b) in a form acceptable to the contracting entity;
(c) from an institution acceptable to the procuring entity, where
the security is issued by a financial institution; and
(d) valid for the period prescribed in the contract.
(6) The conditions for forfeiture of the performance security shall be
specified in the contract.
(7) The contracting entity shall release the performance security promptly
to the contractor upon completion of all the contractor’s 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.
PART 9 – PROCUREMENT OF CONSULTANCY
61 Request for proposals method
(1) The request for proposals method shall be used for the procurement of
Regulation 50 Public Procurement Regulations 2015
(2) For the purposes of procuring the services of a consultant, the
contracting entity shall :
(a) seek expressions of interest by publishing a notice in a local
newspaper of wide circulation ; and
(b) prepare a shortlist of 3 to 6 consulting firms, to the greatest extent
feasible, comprising consultants of the same category and similar
capacity and business objectives and the short-list shall be
established from among those who have capacity to perform
the required services, as demonstrated in their expressions
(3) When the estimated value of the procurement exceeds $ 150,000, in
order to establish the short-list, the contracting entity shall seek
expressions of interest by publishing a notice in a local or international
newspaper of wide circulation, and where appropriate, the notice may
also be published in a relevant trade publication or technical or
(4) For assignments of a value lower than $ 50,000, the short-list may be
established from market knowledge or other sources of information but
in the case of particularly complex assignments, an advertisement shall
also be utilized.
(5) The request for proposals shall provide shortlisted bidders with the
information necessary to enable them to participate in the procurement
proceedings and to submit proposals that are responsive to the needs of
the contracting entity including, in particular the:
(a) name and address of the contracting entity;
(b) nature, time frame and location of the services to be provided,
terms of reference, required tasks and outputs;
(c) criteria to be used in evaluating and comparing proposals, and
their relative weights as compared to price;
(d) contractual terms of the procurement, and the manner of entry into
force of the contract;
(e) instructions for preparation and submission of proposals, and the
place and deadline for submission of proposals;
(f) final selection procedures to be applied;
(g) notice of conflict-of-interest restrictions and anti-fraud and anti-
corruption rules, including the grounds for potential debarment
from future participation in procurement of goods, services or
works that may result from the assignment under consideration;
Public Procurement Regulations 2015 Regulation 62
(h) such matters as may be prescribed in the standard bidding
documents issued by the Procurement Division.
(6) The price of a proposal shall be considered by the contracting entity only
after completion of the technical evaluation.
62 Methods of selection and conditions for use
(1) The preferred evaluation methods shall be:
(a) Quality and cost based selection (QCBS): This method uses a
competitive process among short listed consultants that takes into
account the quality of the proposal and the cost of the services in
the selection of the successful consultant; or
(b) Selection under fixed budget (SFB): This method shall be used
when the assignment is simple and can be precisely defined, and
when the budget is fixed.
(2) The following methods shall only be used with the prior approval of the
Head of a contracting entity:
(a) Least cost selection (LCS): This method is appropriate for
assignments of a standard or routine nature (financial audits,
architectural and engineering design for non-complex works, etc.)
where well established practices and standards exist, and in which
the contract amount is small;
(b) Selection amongst community service organisations (CSO):
This method may be used where involvement and knowledge of
community needs, local issues, and community participation are
paramount in the preparation, implementation and operation of
community development projects;
(c) Single source selection (SSS): This method shall be used only in
exceptional cases, such as:
(i) for tasks as continuation of previous completed
(ii) where a rapid selection is essential (as in emergency);
(iii) for small assignments of less than $ 7,500;
(iv) when only one consultant is qualified or has experience
of exceptional worth for assignment; or
(v) owing to a catastrophic event there is an emergent need of
the services; or
(d) Selection of individual consultants (SIC): This method shall be
Regulation 52 Public Procurement Regulations 2015
(i) the qualification and experience of the individual are
the paramount requirement;
(ii) teams of personnel are not required; and
(iii) no outside professional support is required.
63 Evaluation of Proposals
(1) In respect of Quality and Cost Based Selection (QCBS), the evaluation
of 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 is concluded.
(2) In evaluating the quality, the contracting entity shall evaluate each
technical proposal, taking into account several criteria:
(a) the consultant’s relevant experience for the assignment,
(b) the quality of the methodology proposed,
(c) the qualifications of the key staff proposed, and
(d) transfer of knowledge, if required in the TOR.
(3) Each criterion shall be marked on a scale of 1 to 100 and then the marks
shall be weighted to become scores. The weights to be used shall be
appropriate to the specific assignment and shall be set out in the bidding
(4) A proposal shall be considered unsuitable and shall be rejected at this
stage if it does not respond to important aspects of the TOR or it fails to
achieve a minimum technical score specified in the RFP.
(5) The consultants whose technical proposals do not meet the minimum
qualifying mark or are considered nonresponsive to the RFP and TOR
shall be notified that their financial proposals will not be evaluated and
their financial proposals shall be returned to them unopened after the
signature of the contract.
(6) The contracting entity shall simultaneously notify the consultants that
have secured the minimum qualifying mark, the date, time, and place set
for opening the financial proposals. The opening date shall be defined
allowing sufficient time for consultants to make arrangements to attend
the opening of the financial proposals.
(7) The financial proposals shall be opened publicly in the presence of
representatives of the consultants who choose to attend and the name of
the consultant, the technical points, and the proposed prices shall be read
aloud and recorded when the financial proposals are opened.
Public Procurement Regulations 2015 Regulation 63
(8) In considering the financial proposals, any arithmetical errors shall be
corrected. For the purpose of comparing proposals, the costs shall be
converted to a single currency as stated in the RFP.
(9) The proposal with the lowest cost may be given a financial score of 100
and other proposals given financial scores that are inversely proportional
to their prices. Alternatively, a directly proportional or other
methodology may be used in allocating the marks for the cost. The
methodology to be used shall be described in the RFP.
(10) The total score shall be obtained by weighting the quality and cost scores
and adding them. The weight for the “cost” shall be chosen, taking into
account the complexity of the assignment and the relative importance of
quality. The weight for cost shall normally be 20 points out of a total
score of 100. The proposed weightings for quality and cost shall be
specified in the RFP. The firm obtaining the highest total score shall be
invited for negotiations.
(11) Negotiations shall include discussions of the TOR, the methodology,
staffing, the contracting entity’s inputs and special conditions of the
contract. These discussions shall not substantially alter the original TOR
or the terms of the contract.
(12) If the negotiations fail to result in an acceptable contract, the contracting
entity shall terminate the negotiations and invite the next ranked firm for
negotiations. The consultant shall be informed of the reasons for
termination of the negotiations. Once negotiations are commenced with
the next ranked firm, the contracting entity shall not reopen the earlier
negotiations. After negotiations are successfully completed, the
contracting entity shall promptly notify other firms on the short list that
they were unsuccessful.
(13) In respect of Selection under Fixed Budget (FBS), the RFP shall indicate
the available budget and request the consultants to provide their best
technical and financial proposals in separate envelopes, within the
(14) Evaluation of all technical proposals shall be carried out first as in the
QCBS method. Then the priced proposals shall be opened in public and
prices shall be read out aloud. Proposals that exceed the indicated
budget shall be rejected.
(15) The Consultant who has submitted the highest ranked technical proposal
among the rest shall be selected and invited to negotiate a contract.
(16) In respect of Least-Cost Selection (LCS), a minimum qualifying mark
for the quality is established on the basis that all proposals above the
minimum compete only on cost. The minimum qualifying mark shall be
stated in the RFP.
Regulation 54 Public Procurement Regulations 2015
(17) Technical proposals are opened first and evaluated. Those securing less
than the minimum qualifying mark are rejected and the financial
proposals of the rest are opened in public.
(18) The firm with the lowest price shall then be selected.
(19) In respect of selection amongst Community Service Organisations
(CSO), for assignments that emphasize participation and considerable
local knowledge, the short list may comprise entirely CSO’s.
(20) In this event, the QCBS procedure shall be followed, and the evaluation
criteria shall reflect the unique qualifications of CSO’s, such as
voluntarism, non-profit status, local knowledge, scale of operation, and
(21) The contracting entity may select the CSO on a single-source basis,
provided the criteria of sub-regulation 62(2)(c) are fulfilled.
(22) In respect of the Selection of Individual Consultants (SIC), the
contracting entity shall prepare the TOR, requesting information on the
consultants’ experience and competence relevant to the assignment,
establish a short list, and select the Consultant with the most appropriate
qualifications and references. The selected Consultant shall be asked to
submit a combined technical-financial proposal and then be invited to
negotiate the contract.
PART 10 – TRANSPARENCY AND INTEGRITY
64 Bidder debriefing
(1) A contracting entity shall, upon request, communicate promptly to a
bidder the reason for the rejection of its application to pre-qualify, or of
(2) Any debriefing shall be provided in writing, within a reasonable period
of time of the receipt of the request.
(3) 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.
(4) Except in so far as they are identified, the debriefing shall not provide
details of any other bids, other than information that is publicly available
from bid openings or published notices.
Public Procurement Regulations 2015 Regulation 65
65 Contract award
The Central Procurement Unit shall promptly publish, and in any event within
one month from award, a notice of all procurement contract awards on the
website of the Ministry of Finance and National Planning/Procurement
66 Records and reports of procurement activities
(1) The contracting entity shall maintain an individual record for each
procurement requirement, which shall be marked with the relevant
procurement reference number.
(2) For all procurement activities above $ 10,000, the Central Procurement
Unit shall maintain an individual record for each procurement
requirement, which shall be marked with the relevant procurement
(3) The record shall contain the originals and copies, where appropriate, of
all information, documents and communications related to that
procurement proceeding and shall, to the extent that not already
contained in the proposed procurement plan, also include at least the
(a) a description of the object of the procurement;
(b) a list of the participating bidders and their qualifications;
(c) any requests for clarifications and any responses thereto;
(d) a statement of the reason for choice of a procurement method
other than competitive bidding or request for proposals
(e) bid prices;
(f) a summary of the evaluation of bids;
(g) summary of any review proceedings, and the related decisions;
(h) any other information required to be recorded under these
(4) The record shall be prepared and disclosed in a manner that avoids
disclosure of proprietary commercial information.
(5) The record shall, on request, be made available to any person after a bid
has been accepted, unless any portion of the record is required to be
disclosed earlier pursuant to law, or by order of a competent court or a
duly appointed arbitrator.
Regulation 56 Public Procurement Regulations 2015
(6) Procurement records shall be kept for a minimum period of five years
following completion or termination of the contract or cancellation of
the procurement proceedings.
(7) Contracting entities shall submit report summaries on their
procurement activities to the Procurement Division in accordance with
templates issued by the Procurement Division.
67 Conduct of procurement officers
(1) Every officer responsible for any aspect of the procurement of a
contracting entity, including the requisitioning, planning, preparing and
conducting procurement proceedings and administering the
implementation of procurement contracts, shall, as a procurement
(a) ensure that each decision is based on adequate information in light
of the circumstances, and is made in good faith, for a proper
purpose in accordance with these Regulations and in the best
interests of the Government;
(b) assure fair competitive access by contractors to procurement
proceedings and contract awards;
(c) avoid circumstances in which he might personally benefit from a
decision, either directly or indirectly through family and
associates, from his official actions or that would give the
appearance of the same;
(d) not commit corrupt or fraudulent acts, such as the solicitation
or acceptance of bribes; or
(e) not reveal confidential information received in connection with
procurement proceedings and bids, including bidders’ proprietary
68 Conduct of bidders and contractors
(1) Bidders and contractors shall at all times abide by their obligations under
these Regulations, procurement contracts and other instruments
applicable to their conduct and activities related to procurement.
(2) A bidder, or a contractor, shall not engage in or abet corrupt or fraudulent
practices, including the offering or giving, directly or indirectly, of
improper inducements, or the misrepresentation of facts, in order to
influence a procurement process or the execution of a contract, including
by inducing the commission of inappropriate acts; or
Public Procurement Regulations 2015 Regulation 69
(3) Bidders shall not engage in collusion, prior to or after bid submission,
designed to allocate contracting entities among bidders, establish bid
prices at artificial non-competitive levels or otherwise to deprive the
contracting entity of the benefits of free and open competition.
(4) A contracting entity shall reject a bid if the bidder offers, gives or agrees
to give an inducement referred to in sub-regulation (2) and promptly
notify the rejection to the bidder concerned to the relevant law
(5) Bidders and contractors who engage in fraudulent and corrupt practices
in connection with public procurement are subject to prosecution under
the applicable criminal laws.
69 Offences by procurement officers
Every officer involved in procurement who breaches any provisions of these
Regulations commits a serious disciplinary offence which shall be dealt with
under sections 39 and 40 of the Public Finance Management Act 2002 and the
Public Service (Disciplinary Procedure) Regulations 2003.
(1) For the purpose of this regulation, a ‘bidder’ shall be a person wishing
to participate in a tender, to provide quotations or proposals and may
include any ‘affiliate’ of that person. An ‘affiliate’ shall mean business
concerns, organizations or individuals which, directly or indirectly,
(a) either control or have the power to control the bidder, or
(b) is controlled by or may be subject to the control of the bidder.
For the purposes of this section, indicia of control include, but are not
limited to, interlocking management or ownership, identity of interests
among family members, shared facilities and equipment, common use
of employees, or a business entity organized following the debarment or
proposed debarment of a bidder which has the same or similar
management, ownership, or principal employees as the bidder that was
debarred or proposed for debarment.
(2) Any person wishing to participate in an invitation to tender, to provide
quotations or proposals in accordance with these regulations may be
debarred for a specific period of time from future procurement
opportunities invited under these Regulations where one of the offences
identified in regulation 71 have been committed.
(3) Where an alleged offence has been committed, the bidder shall be
investigated by a Debarment Officer within the contracting entity
Regulation 58 Public Procurement Regulations 2015
making the allegation. Where further action is justified, the Debarment
Officer will refer the allegations to the Debarment Committee
established by the Government Procurement Committee pursuant to the
procedure set out in Schedule 1 of these Regulations.
(4) After reasonable notice is given to the bidder involved, and a reasonable
opportunity has been given to such bidder to be heard, the Government
Procurement Committee may, for cause, debar a person, as prescribed in
Schedule 1 of these Regulations.
71 Grounds for debarment
(1) A person may be debarred for any of the following:
(a) conviction for an offence involving dishonesty, obstruction of
justice or a lack of honesty or business integrity;
(b) conviction for an offence involving corruption;
(c) conviction for engaging in anti-competitive practices, whether or
not involving collusion; or
(d) deliberate neglect or failure without good cause to perform a
contract in accordance with its terms of so serious a nature as to
justify suspension or debarment on condition that such neglect of
(i) has resulted in the termination of the contract by the
contracting entity; or
(ii) has led to the imposition of liquidated damages or other
remedies foreseen in the contract for such acts or
(iii) has been identified in a judgment of a court of law in
respect of a case brought by the contracting entity for
breach of contract.
(2) A person may also be debarred for unethical conduct including:
(a) offering or making a payment or offer of employment, or offering
or giving a gratuity or other reward, in connection with a
(b) offering to pay or paying a bribe whether in the form of a payment,
gratuity, offer of employment or otherwise by or on behalf of a
subcontractor under a contract to the prime contractor or a higher
tier subcontractor or any person associated therewith, as an
inducement for the award of a contract; and
(c) knowingly soliciting or obtaining confidential information, or
attempting to obtain confidential information, in relation to a
Public Procurement Regulations 2015 Regulation 72
procurement for the purpose of obtaining an advantage over
other persons who submit or might reasonably be expected to
submit a bid, proposal, quotation or offer in relation to an
72 No contract award
No contracting entity shall award a contract to a bidder which has been
PART 11 – COMPLAINTS AND APPEALS
73 Right to complain
(1) Subject to sub-regulations (2) and (3) a potential or actual bidder who
claims to have suffered, or that is likely to suffer, loss or injury due to a
breach of a duty imposed on a contracting entity by these Regulations,
may seek review at any stage of the procurement proceedings.
(2) An application for review:
(a) that concerns alleged improprieties in the invitations to bid or to
pre-qualify which are apparent prior to bid opening, shall be
entertained only if submitted prior to bid opening;
(b) that is made prior to the entry into force of a contract shall not be
entertained unless the bidder has first lodged a complaint with the
contracting entity in accordance with regulation 74;
(c) that is made after a procurement contract has entered into force
shall be submitted directly to the Procurement Division in
accordance with regulation 76.
(3) No complaint to a contracting entity or application for review shall be
entertained unless it identifies the specific act or omission alleged to
contravene these Regulations and the bidding document.
74 Review by contracting entity
(1) Prior to the entry into force of a contract, a complaint shall be made, in
the first instance, in writing, to the Head of the contracting entity.
(2) Notwithstanding sub-regulation 73(2)(a), the Head of the contracting
entity shall not entertain the complaint:
Regulation 60 Public Procurement Regulations 2015
(a) unless it was submitted within 14 days of when the bidder
submitting it became aware of the
(b) circumstances giving rise to the complaint or when the bidder
should have become aware of those circumstances, whichever
(c) in any event within 10 days of the date of notification of the
proposed award of the contract.
(3) Unless the complaint is resolved by mutual agreement, the Head of the
contracting entity shall:
(a) suspend the procurement proceedings unless he is satisfied that
urgent public interest considerations require the procurement to
(b) within five days after submission of the complaint issue a written
decision stating the reasons and, if the complaint is upheld,
indicating the corrective measures to be taken.
(4) If the Head of the contracting entity does not issue a decision within the
5 days stated in sub-regulation (3)(b), or if the complainant is not
satisfied with the decision the complainant may submit a complaint to
an Independent Expert under regulation 76.
(5) Complaints under sub-regulation (4) shall not be heard unless submitted
to the procurement Division within 10 days from the elapse of the time
stated in sub- regulation (3) or from the date on which the contracting
entity’s decision was communicated to the complainant.
75 Independent Expert
(1) The Government Procurement Committee shall appoint one or more
Independent Experts for the purpose of reviewing a bidder’s complaint
with respect to any breach of its obligations under these Regulations.
(2) Independent Experts shall be nominated by the Procurement Division
upon advisement of the Attorney-General’s Office. No Independent
Expert may be proposed for appointment without the concurrence of the
(3) Independent Experts shall be a person or persons
(a) who have been legal professionals; or
(b) who have previously been senior officers in the service of the
Government with experience in the procurement area, or
(c) specialists with experience in the procurement area.
Public Procurement Regulations 2015 Regulation 76
76 Application for Review
(1) An application for review may be brought before the Procurement
Division in the following circumstances:
(a) in the form of an appeal by the complaining bidder against a
decision by a Head of contracting entity under Regulation 74,
provided that the appeal is submitted within 10 days of the date of
(b) where the Head of contracting entity to whom a complaint is made
pursuant to regulation 74 fails to render a decision within the
required time frame, provided that the application for review is
filed within 10 days of the expiry of the time for the decision
referred to in regulation 74(3)(b);
(c) in the case where the contract has already entered into force, any
application for review submitted in the first instance to the
Procurement Division shall not be entertained unless it is
submitted within 10 days of when the bidder submitting it became
aware of the circumstances giving rise to the complaint or of when
that bidder should have become aware of those circumstances,
whichever is earlier.
(2) Within 7 days of receiving an application for review, the Procurement
Division shall advise the parties of the single Independent Expert that
will conduct the review and shall notify the bidder of the date for the
commencement of its activities which shall be known as the date of
77 Review decisions
(1) The Independent Expert, advised pursuant to regulation 76(3), shall
make a written decision, containing the reasons for the decision, within
10 days after the date of selection.
(2) Such decision shall be binding on all the parties.
(3) An application for review may be dismissed for:
(a) failure to submit the application for review within the time-limits
specified in comply with any of the requirements of regulation
(b) setting forth only allegations that do not state a valid basis for a
complaint, or that do not set forth adetailed legal and factual
statement in accordance with regulation 73(3); or
(c) concerning contract implementation or administration rather
than contract award.
Regulation 62 Public Procurement Regulations 2015
(4) Unless an application for review is dismissed, the remedies that may be
ordered by the Independent Expert include:
(a) prohibiting the contracting entity from acting or deciding in an
unauthorised manner or from following incorrect procedure;
(b) annulling in whole or in part any unauthorised act or decision of
a contracting entity, other than any act or decision bringing the
contract into force; or
(c) reversing a decision by the Head of contracting entity, other than
any decision bringing the contract into force;
(d) where a contract has been concluded unlawfully, the award of
compensation to be paid by the contracting entity to the aggrieved
bidder amounting at least to the cost of bid preparation.
(5) The timely submission of a complaint in accordance with deadlines set
in this regulation suspends the procurement proceedings until a decision
on the complaint is issued by the Independent Expert.
(6) Notwithstanding sub-regulation (5), the Independent Expert may, upon
the application of the contracting entity, end the automatic suspension in
sub- regulation (5) where the contracting entity satisfies the Independent
Expert that the continuation of the suspension would cause
disproportionate harm to the public interest, the contracting entity or to
other suppliers and contractors.
(7) The lifting of the automatic suspension provided for in sub-regulation
(a) allows the contracting entity to continue with the procurement
procedure up to contract award; and
(b) but does not allow any contract to be concluded before the
determination of the Independent Expert.
(8) The proceedings of the Independent Expert shall be governed by
Schedule 2 of these Regulations which ensure that all parties to the
dispute are heard and given fair opportunity of making their case.
78 Costs of the Procedure
(1) In addition to delivering its decision on the merits of the case, the
Independent Expert shall also make an award on the costs, including
administrative costs, of the case and decide which of the parties shall
bear the costs or the proportions of the costs to be borne by each party.
(2) Without prejudice to sub-section 1, the Experts’ fees and travel expenses
shall be determined by the Procurement Division in accordance with the
scales agree by the Minister of Finance.
Public Procurement Regulations 2015 Regulation 79
PART 12 – REPEALS AND SAVINGS
79 Repeals and savings
(1) The Public Procurement Regulations 2010 and any rules adopted
thereunder are hereby repealed.
(2) All proceedings for public procurement commenced immediately before
the commencement of these Regulations shall, notwithstanding the
repeal under sub-regulation (1), be disposed of in accordance with the
provisions of those repealed Rules, Regulations, Instructions or any
other instruments as if they have not been repealed.
Regulation 64 Public Procurement Regulations 2010
Page 64 V01
1 Debarment Officer
(1) The head of every contracting entity shall appoint a Debarment Officer
to investigate allegations of prohibited practices and to decide whether
to propose that a bidder should be debarred.
(2) The Debarment Officer should ordinarily be the chief legal officer of
that contracting entity.
2 Debarment Committee
(1) The Chairman of the Government Procurement Committee shall
establish a Debarment Committee whenever an allegation is brought to
it by a Debarment Officer.
(2) The Debarment Committee shall consist of three members as follows:
(i) the CEO of Finance or a person delegated by him or her who shall
also be the chairman of the Debarment Committee; (ii) a legal officer of
the Attorney-General’s Office and (iii) the head of the contracting entity
which proposes the debarment or suspension or a person delegated by
him or her. The head of the Procurement Division shall provide the
(3) The Debarment Committee shall have the task, on the basis of a referral
from a Debarment Officer, to determine whether there is sufficient
evidence in each case to debar a bidder accused of a prohibited practice
and to issue a Notice of Debarment.
(4) The decision of the Debarment Committee shall be by majority vote, the
Chairman having the casting vote.
3 Initiating the debarment procedure
(1) If any officer of a contracting entity suspects that a bidder participating
in a contract award procedure or an affiliate of such bidder has
committed a prohibited practice defined in Regulation 71 or has been
the subject of a civil judgment or criminal conviction in respect of a
prohibited practice, he may bring this to the attention of the relevant
Public Procurement Regulations 2015 Regulation 79
V01 Page 65
Debarment Officer together with any documentary evidence at his
(2) The Debarment Officer shall consider and/or investigate allegations of
the commission of prohibited practices.
(3) If, as a result of the information provided or of his own investigation,
the Debarment Officer is satisfied that there is sufficient evidence to
support a finding of a prohibited practice, he may prepare a Draft Notice
of Proposed Debarment and submit the same to the Debarment
Committee of the Government Procurement Committee.
(4) Within 10 days of receiving the Draft Notice of Proposed Debarment,
the Chairman of the Government Procurement Committee shall convene
a meeting of the Debarment Committee to review its contents and decide
whether or not to proceed.
(5) If the Committee agrees with the conclusions of the Debarment Officer
as set out in the Draft Notice, it will send to the bidder (known as the
‘Respondent’) a Notice of Proposed Debarment in the same terms. If an
accusation is made against an affiliate of a bidder, such affiliate shall
also be named.
(6) The decision of the Debarment Committee:
(a) shall be based on an objective assessment of the truth of the
allegations made and of the quality and sufficiency of the
(b) shall not be based on convenience or on the existence of any
compromise reached with any particular bidder other than that
foreseen in respect of a conditional non-debarment referred to in
(7) If the Debarment Committee determines that the Draft Notice of
Proposed Debarment does not contain sufficient evidence to support the
proposed debarment or sanction, it will notify the Debarment Officer of
its decision and of the reasons for the decision. The Debarment Officer
may, at his discretion, amend and resubmit a revised Draft Notice of
Proposed Debarment for consideration by the Debarment Committee.
4 Notice of Proposed Debarment
(1) The Notice of Proposed Debarment will be communicated to the named
Respondent and any affiliate specifically named therein by registered
mail and will inform the Respondent:
(a) that debarment is being considered;
Regulation 66 Public Procurement Regulations 2010
Page 66 V01
(b) of the identity of each Respondent and/or affiliate alleged to have
engaged in a prohibited practice;
(c) of the prohibited practice(s) and reasons for relied upon for
proposing debarment in terms sufficient to put the bidder on
notice of the conduct or transaction(s) upon which it is based;
(d) of the evidence that the Debarment Officer;
(i) intends to present to the Debarment Committee in support
of the proposed debarment, such evidence to be attached to
the Notice where practicable, including any relevant
witness statements, if any;
(ii) possesses or is aware of that would reasonably tend to
mitigate the Respondent’s culpability;
(e) of the period of debarment or other sanction being contemplated
and of the consequences of a debarment in those terms;
(f) of the procedure applicable to debarment;
(g) that, if the Respondent and/or affiliate intends to contest the
allegations and/or the debarment or sanction proposed, it shall
inform the Debarment Committee by way the Notice to Defend
form (to be attached to the Notice of Proposed Debarment) within
10 days of the issuance of the Notice of its intention and
requesting, if it considers appropriate, an oral hearing before the
Debarment Committee and indicating the identity of any
witness(es) it considers necessary for a fair hearing.
(2) If the prohibited practice relied upon is based on a civil judgment or
criminal conviction relating to such practice, the Respondent and/or
affiliate may contest the proposed debarment in writing only and only
on the basis that the said judgment or conviction
(a) is irrelevant, in that it does not pertain to the commission of a
prohibited practice in the context of a contract award procedure;
(b) has been reversed on appeal.
(3) If the Respondent
(a) does not inform the Debarment Committee pursuant to sub-
section (1)(g) of its intention to contest the allegations and/or the
sanction proposed in the Notice of Proposed Debarment within
ten days (10) days after the said Notice was issued, or
(b) responds to the Notice admitting all or part of the allegations, the
Debarment Committee will and without need of a hearing issue a
decision imposing the sanction recommended in the Notice of
Proposed Debarment or any other sanction, taking into account
Public Procurement Regulations 2015 Regulation 79
V01 Page 67
any mitigating factors disclosed by virtue of sub-section (1)(d)(ii)
and of the considerations set out in section 6(7).
(4) If the Respondent informs the Debarment Committee pursuant to sub-
section (1)(g) that it intends to contest the allegations and/or the sanction
recommended in the Notice of Proposed Debarment, the Committee
will, within 5 days:
(a) inform the Respondent of the date by which the Respondent’s
written Response shall be received.
The Response may contain information and argument in opposition to
the proposed debarment and include the witness statements of any
witnesses that the Respondent wishes to call at the hearing, if any. The
Response shall contain a statement, signed by an individual Respondent
or an authorized officer of a Respondent that is an entity, that the
information contained therein is true, complete and correct to the best of
the signatory’s knowledge after the exercise of reasonable due diligence
in reviewing the matter and the records of the Respondent within
Respondent’s possession or control;
(b) where a hearing has been requested, inform the Respondent
(i) of the date(s), time and location proposed for the hearing;
(ii) of the evidence that may be adduced and what form it may
(iii) whether and which witnesses will be permitted.
(c) set and inform the Respondent of the limits for the length of the
written and oral submissions and of the hearing, such limits being
reasonable in light of the accusations made and evidence
(d) make appropriate arrangements for the hearing.
5 Hearings and evidence
(1) The Debarment Officer will present the case against the Respondent. He
may be assisted or represented by a third party who may or may not be
an employee of the same organisation.
(2) A Respondent may represent himself and/or his organisation or be
represented by an attorney or any other individual authorized by the
Respondent, at the Respondent’s own expense.
(3) Any affiliate named in the Notice of Proposed Debarment may also be
represented by himself or by an attorney or any other individual
authorized by the affiliate, at his own expense.
Regulation 68 Public Procurement Regulations 2010
Page 68 V01
(4) The Debarment Officer, the Respondent and/or affiliate and their
representatives may be present throughout the hearing. None of these
may be present for or participate in the deliberations of the Debarment
(5) The Debarment Officer or his representative shall present his case first.
The Respondent or Respondent’s representative shall present the
Respondent’s case second. The Debarment Officer shall be permitted to
reply. The Debarment Committee shall set a reasonable period of time
for each presentation.
(6) Presentations shall be informal and shall be limited to arguments and
evidence contained in the written submissions filed with the Debarment
Committee and may rely upon or refute individual items of evidence.
(7) Witnesses may only be called with the prior agreement of the Debarment
Committee (based on the indications made in the Notice of Proposed
Debarment and the Notice to Defend submitted by the Respondent in
accordance with sub-section 7(1)(b)). Witnesses shall provide written
witness statements of their evidence in advance of the hearing to be
included in the Response of the Respondent. The witnesses may be
questioned only by members of the Debarment Committee and there will
be no cross-examination, although rebuttal evidence may be presented
during the hearing.
(8) The Debarment Officer, the Respondent and their representatives may
also be subject to questions by the members of the Debarment
Committee. A party’s refusal to answer, or failure to answer truthfully
or credibly, may be construed against that party.
(9) Formal rules of evidence shall not apply and any type of evidence may
form the basis of arguments presented. The Debarment Committee
nonetheless retains the discretion to determine the relevance, materiality,
weight, and sufficiency of all evidence offered. Hearsay evidence or
documentary evidence shall be given the weight deemed appropriate by
the Debarment Committee. Without limiting the generality of the
foregoing, the Debarment Committee shall have the discretion to infer
purpose, intent and/or knowledge on the part of the Respondent, or any
other party or witness, from circumstantial evidence before it.
(10) The Debarment Committee shall cause a full record to be kept of the
hearing. Nevertheless, the hearing including the content of the written
and oral submissions shall remain confidential and not be open or
available to the public.
Public Procurement Regulations 2015 Regulation 79
V01 Page 69
6 Decision of the Debarment Committee
(1) It is the responsibility of the Debarment Committee to determine
whether the proposed debarment is in the interests of the contracting
entity on the basis of the evidence presented.
(2) It is the Debarment Officer that bears the burden of presenting sufficient
evidence to prove the alleged engagement of the Respondent in
prohibited practices and the desirability of debarment.
(3) In considering that evidence, the Debarment Committee will determine
whether the preponderance of the evidence supports the conclusion that
is more likely than not that the Respondent has engaged in a prohibited
(4) If the Debarment Committee determines that it is more likely than not
that the Respondent did not engage in a prohibited practice, the
Committee shall issue a Notice of Non-Debarment to the Respondent
and terminate the proceedings.
(5) If the Debarment Committee determines that it is more likely than not
that the Respondent did engage in a prohibited practice, the Committee
may impose an appropriate debarment sanction on the Respondent,
which sanction shall be selected from the range of possible sanctions
identified in section 7.
(6) The existence of a proven cause for debarment does not necessarily
require that the bidder be debarred or receive the sanction proposed in
the Notice of Proposed Debarment. The seriousness of the bidder’s acts
or omissions and any remedial measures or mitigating factors should be
considered in making any debarment decision. The burden rests on the
Respondent to provide evidence of mitigating factors which might tend
to reduce or remove the desirability for debarment.
(7) Before arriving at any debarment decision, the Debarment Committee
should consider factors such as the following:
(a) the severity of the Respondent’s conduct;
(b) the degree of involvement of the Respondent in the prohibited
practice (including whether the conduct involved was “active” or
(c) the magnitude of any losses caused by the Respondent and
damage caused by the Respondent to the credibility of the
(d) the past conduct of the Respondent involving a prohibited
Regulation 70 Public Procurement Regulations 2010
Page 70 V01
(e) the extent to which the Respondent cooperated in the investigation
and whether such cooperation is of substantial benefit to the
(f) whether the bidder has fully investigated the circumstances
surrounding the cause for debarment and, if so, made the result of
the investigation available to the Debarment Committee and/or
taken appropriate disciplinary action against the individuals
responsible for the activity which constitutes cause for debarment;
(g) whether the bidder’s management recognizes and understands the
seriousness of the misconduct giving rise to the cause for
debarment and has instituted or agreed to institute new or revised
review and control procedures and ethics training programs or
other programmes to prevent recurrence;
(h) any other factor that the Debarment Committee deems relevant.
7 Debarment sanction
(1) The debarment sanction may take one of the following forms:
(a) Reprimand: a formal “Letter of Reprimand” based on the
Respondent’s conduct but which falls short of debarment.
This may be used where it is the Respondent’s first offence and where
the offence is relatively minor or where there are sufficiently compelling
mitigating factors. It should not be used for a second or subsequent
(b) Conditional Non-Debarment: a sanction which threatens
debarment where certain conditions are not met.
Based on the gravity of the offences and the existence of mitigating
factors, the Debarment Committee may decide that the Respondent be
required to comply with certain remedial, preventative or other measures
as a condition to avoid debarment. In the event the Respondent fails to
demonstrate compliance with the conditions within the time periods
established by the Debarment Committee, a debarment would
automatically become effective for a period of time established by the
Debarment Committee, i.e. it would be converted into a Temporary
(c) Temporary Debarment: the primary sanction which debars the
Respondent from participation for a specific period of time not to
exceed five (5) years.
Based on the gravity of the offence and of any mitigating factors, the
Debarment Committee may impose a temporary debarment of one, three
or five years. Whilst this is dependent on the circumstances of the case,
Public Procurement Regulations 2015 Regulation 79
V01 Page 71
it would be expected that a first offence would attract the shortest
duration with subsequent offences attracting longer periods of
debarment. Sufficiently serious offences could, however and in the
absence of mitigating factors, attract longer periods of debarment even
where they are first offences.
For debarments of periods of more than one (1) year only, the Debarment
Committee may impose additional conditions requiring the Respondent
to comply with certain remedial, preventative or other measures similar
to the requirement imposed to a Conditional Non-Debarment. If the
Respondent succeeds in meeting these conditions, it may subsequently
apply to the Debarment Committee for a Review of the debarment and
the Debarment Committee may commute the debarment to a shorter
(d) Permanent Debarment: this is the most serious sanction and will
be used rarely.
It is appropriate only in cases of particularly egregious offences where
the Respondent has consistently failed to correct its practices following
at least two orders of temporary debarment, at least one of which shall
have been accompanied by a compliance programme of remedial,
preventative or other measures intended to assist the Respondent in
overcoming any institutional impediments to improvement.
(2) Other than in the case of permanent debarment, the debarment decision
of the Debarment Committee will be final and will take effect
immediately, without prejudice to any other action taken by any other
government organisation under applicable law.
(3) In the case of permanent debarment, the decision shall automatically be
referred to a Debarment Adjudicator to be appointed on an ad hoc basis
with the concurrence of the Attorney-General’s Office who shall review
the facts and evidence presented during the investigation and/or hearings
before confirming or rejecting the proposed Notice of Debarment. The
Debarment Adjudicator shall
(a) not rehear the case or allow any further written or oral
submissions but shall carry out an objective assessment of the
(b) only reject the proposed Notice where, in his opinion, the
preponderance of the evidence does not establish that the
Respondent engaged in a prohibited practice.
Regulation 72 Public Procurement Regulations 2010
Page 72 V01
8 Scope and consequences of debarment
(1) The Debarment Committee may extend the effect of the Notice of
Debarment to include any affiliates of the bidder provided they are:
(a) specifically named in the Notice of Proposed Debarment; and
(b) given an opportunity to respond.
(2) When issuing a Notice of Debarment, the Debarment Committee may,
as appropriate, impute the fraudulent, corrupt or other seriously
(a) of any officer, director, shareholder, partner, employee, or other
individual associated with a bidder, to the bidder when the
conduct occurred in connection with the individual’s performance
of duties for or on behalf of the bidder, or with the bidder’s
knowledge, approval, or acquiescence.
The bidder’s acceptance of the benefits derived from the conduct shall
be evidence of such knowledge, approval, or acquiescence.
(b) of a bidder, to any officer, director, shareholder, partner,
employee, or other individual associated with the bidder who
participated in, knew of, or had reason to know of the contractor’s
(c) of a bidder participating in a joint venture or similar arrangement,
to other participating bidders if the conduct occurred for or on
behalf of the joint venture or similar arrangement, or with the
knowledge, approval, or acquiescence of these bidders.
Acceptance of the benefits derived from the conduct shall be evidence
of such knowledge, approval, or acquiescence.
(3) Following debarment, the name of the debarred bidder, affiliates, joint
venture partner, officer, director, shareholder, partner, employee or other
individual, as appropriate, shall be included in the List of Debarred
Bidders maintained by the Procurement Division;
(4) In respect of bidders and other persons properly included in the List of
Debarred Bidders, all government agencies shall:
(a) exclude such bidders and other persons from receiving contracts
awarded by them;
(b) not solicit offers from, award contracts to, or consent to
subcontracts with them;
(c) reject any bids received from them in response to an invitation for
Public Procurement Regulations 2015 Regulation 79
V01 Page 73
(d) not evaluate any proposals, quotations, or offers received from
them or enter into discussions with them during the period of
(e) not consent to their appointment as a sub-contractor to a bidder
which has not been debarred.
(5) If the period of ineligibility expires or is terminated prior to award, the
contracting officer may, but is not required to, consider such bids
proposals, quotations, or offers.
(6) Notwithstanding the debarment of a bidder or other person, contracting
entities may continue contracts or subcontracts in existence at the time
of the debarment unless the head of the agency directs otherwise.
9 Review and appeals
(1) A debarred bidder or other person affected by the debarment pursuant to
section 7, may seek review of a debarment with the Debarment
Committee at any time when:
(a) newly discovered material evidence or facts come to light which
tend to exculpate the debarred bidder;
(b) a conviction or civil judgment upon which the debarment was
based has been reversed;
(c) there has been a bona fide change in ownership or management of
(d) the bidder has successfully complied with any remedial,
preventative or other measures imposed by the Debarment
Committee in the context of a Conditional Non-Debarment or
Temporary Debarment Committee.
(2) A request for review shall be made in writing and the procedure for
review shall be determined by the Debarment Committee at its
(3) Where a bidder or other person affected by the debarment pursuant to
section 7 above is not satisfied with the decision of the Debarment
Committee in respect of a Conditional Non-Debarment or Temporary
Debarment only, he may apply in writing to the Debarment Committee
who will refer the case to the Debarment Adjudicator within 5 days of
the receipt of the request.
(4) The procedure for the appeal shall be determined by the Debarment
Adjudicator at his discretion but a decision shall be finalised within a
reasonable period of time and, in no case, more than 30 days after the
request has been received by the Debarment Adjudicator.
Regulation 74 Public Procurement Regulations 2010
Page 74 V01
(5) The Debarment Adjudicator shall review the facts and evidence
presented during the investigation and/or hearings before confirming or
rejecting the Notice of Debarment adopted by the Debarment
Committee. The Debarment Adjudicator shall
(a) not rehear the case or allow any further written or oral
submissions but shall carry out an objective assessment of the
(b) only reject the proposed Notice where, in his opinion, the
preponderance of the evidence does not establish that the
Respondent engaged in a prohibited practice.
Public Procurement Regulations 2015 Regulation 79
PROCEDURES FOR COMPLAINTS REVIEW
1 Appointment of Independent Expert
(1) An Independent Expert -
(a) shall be a person who fulfills the requirements of Regulation 75(3) ;
(b) shall not be a member of Parliament or hold any other public office;
(c) will not be deemed by virtue of the office to be employed in the Public
(d) shall be a person of good reputation in the community and enjoy public
(e) shall have no criminal record.
(2) An Independent Expert will be appointed for a term of 3 years, renewable once.
(3) An Independent Expert will be provided with out of pocket expenses and be
remunerated at a rate fixed by the Remuneration Authority from money to be
appropriated for that purpose.
(4) An Independent Expert may be removed or suspended from office only by the
Minister of Finance upon a resolution of Parliament for incompetence,
disability, bankruptcy, neglect of duty or misconduct.
(5) An Independent Expert may resign from office by giving one month’s notice in
writing to the Minister of Finance.
(6) The identity and qualifications of the appointed Independent Expert or Experts
shall be posted on the website of the Procurement Division and shall be made
available to all interested parties upon request.
2 Duty of impartiality and independence
(1) Experts shall be independent and impartial and shall, in all respects relating to
their status and ethical standards, be bound by the rules applicable to public
(2) If an Independent Expert stands to gain financially or has a conflict of interest
in the contract award procedure under review he or she shall not continue as the
Independent Expert in that procedure.
(3) An Independent Expert who has a direct or indirect personal interest in a matter
being considered or to be considered by that Expert shall, as soon as reasonably
practicable after the relevant facts concerning the matter have come to his or
Regulation 79 Public Procurement Regulations 2015
her knowledge, disclose the nature of his or her interest to the Procurement
Division which shall appoint an alternative Independent Expert.
(4) The obligation of sub-Regulation (3) is a continuing obligation on the Expert
appointed. He or she is required to disclose immediately to the Procurement
Division any such interest arising between the date of his or her appointment
and notification of the final award.
(5) The Independent Expert shall be required to undertake any specialised training
identified by the Procurement Division at the cost of the Procurement Division.
(1) A Secretariat shall be organised within the Procurement Division which will be
given responsibility for carrying out the day to day functions associated with
the organisation of the review procedure.
(2) The business of the Independent Experts and all clerical matters arising out of
the conduct of procedure under these rules shall be carried out by the
Secretariat. In particular, all Applications for Review, Replies and subsequent
communications shall be addressed to the Independent Expert at the Secretariat
unless otherwise specified.
(3) Copies of all relevant Forms to be used for the review procedure shall be
available for collection at the offices of the Procurement Division and a copy
of such forms shall be sent to all interested parties upon request.
(4) Following the receipt of an Application for Review, the Secretariat shall:
(a) appoint from its staff a Clerk to the Independent Expert who shall be
responsible for all clerical activities on behalf of the Independent Expert
and for all communications between the parties and the Independent
(b) prepare and provide to the Independent Expert the case file and the terms
of reference for his or her activities in the form provided for in the
Manual of Procedures.
A party may appear in person or may be represented by a lawyer or such other person
as shall be recognised by the Independent Expert as suitable for the purposes of such
5 Submission of Application for Review
Any bidder wishing to submit an Application for Review shall submit the following
documents to the Secretariat together with an administration fee of $ 150 to cover the
costs of duplication and postage:
Public Procurement Regulations 2015 Regulation 79
(a) a completed Application for Review Form in the form provided for by the
(b) copies of any documentary evidence relied upon in support of the claim set out
in the Application for Review Form;
(c) where the request is made by an agent of the Applicant, an appropriate power
6 Receipt of Application
(1) The Secretariat shall record receipt of the Application for Review in the
Register of Applications for Review and assign it a Case Reference Number.
(2) The Secretariat shall immediately verify that the Application for Review is in
conformity with the provisions of section 5.
(3) Any Application for Review found not to be in conformity with section 5 shall
be rejected and returned to the Applicant together with a statement of the
reasons for rejection. The Applicant may then re-submit its corrected
Application for Review.
(4) Upon recording receipt, the Secretariat shall immediately notify the contracting
entity against whom the complaint has been made (the Respondent) of the
Application for Review and include with the notice a complete copy of the
Application for Review. Such notification shall ordinarily take place at the
latest the day following the submission of the Application for Review.
(1) Within 3 days of the receipt of the notification from the Secretariat, the
Respondent shall submit to the Secretariat a Reply containing the following
(a) a written Reply to the Application for Review in the form provided by
(b) copies of any documentary evidence relied upon in support of the Reply;
(c) where the Reply is made by an agent of the Respondent, an appropriate
power of attorney.
(2) The failure to submit a Reply within the specified period will not prevent the
conduct of the review procedure and the Respondent will remain bound by any
decision of the Independent Expert as well as by any Award on Costs made by
the Independent Expert.
(3) Where the Respondent fails to submit a Reply within the specified time limit,
the Secretariat may proceed with the appointment of the Independent Expert.
(4) The Independent Expert shall, if it is satisfied that the Application for Review
was duly served on the Respondent and the party has failed to serve a Reply
Regulation 79 Public Procurement Regulations 2015
without good cause, have power to proceed with its deliberations on the basis
of the evidence before it as if such proceedings had been conducted in the
presence of all parties.
(5) The Secretariat shall in any event inform the Respondent of the appointment of
the Independent Expert and of the date of the hearing, if any.
(1) Following receipt of the Reply, the Secretariat shall collate all the relevant
documents into a single Case File, including the Application for Review, the
Reply, the documentary evidence provided by the parties and the powers of
attorney, if any.
(2) The Secretariat shall formally appoint the Independent Expert and provide him
or her with a copy of the Case File and terms of reference.
(3) The Secretariat shall simultaneously provide the parties with a copy of the Case
(4) Once the appointment of the Independent Expert is confirmed, the Secretariat
shall register the commencement of the complaints procedure in the Register of
Applications for Review as the ‘date of establishment’.
(5) The Secretariat shall immediately notify the parties of the date of establishment.
9 Opening of Review Procedure
(1) The Independent Expert shall, taking into account the nature of the case defined
in the terms of reference, determine the order, time and place of its meetings
and any Hearing it intends to hold.
(2) At the request of the parties, the Independent Expert may proceed to make his
or her decision in the absence of a Hearing. In such a case, the Independent
Expert, if satisfied that he or she can reach a decision on the basis of the terms
of reference and without hearing the parties, may proceed to reach a decision
without a Hearing.
(3) In determining the order and time of the Hearing, the Independent Expert shall
give sufficient consideration to preventing the delay of the proceedings.
(4) The Clerk to the Independent Expert shall communicate this decision to the
parties in the form provided for in the Manual of Procedures.
(1) Hearing shall take place in the manner provided for by the Independent Expert.
(2) If one of the parties, despite having received notice of the Hearing, fails to
appear, the Independent Expert, if satisfied that the notification was received
Public Procurement Regulations 2015 Regulation 79
and the party is absent without good cause, shall have power to proceed with
the proceedings which shall be deemed to have been conducted in the presence
of all parties.
(3) The Hearing shall be closed to the public save that, with the consent of the
Independent Expert, persons having a justifiable interest in the proceedings
may be admitted.
(4) The Clerk to the Independent Expert shall, for each meeting of the Independent
Expert or Hearing, take and keep minutes stating the time, place and the names
of those attending together with a summary record of the meeting or Hearing.
(5) The Clerk to the Independent Expert shall take a stenographic record of the
Hearing where the Independent Expert has so ordered or where there has been
an application for such a record by one of the parties.
(1) All relevant documentary evidence relied upon by the parties in support of their
claims and replies shall be put before the Independent Expert in the form of
copies of the Application for Review and Reply Forms provided for in the
Manual of Procedures.
(2) Subsequent documentary evidence shall be admitted only where, in the opinion
of the Independent Expert, it is relevant and only with his or her consent.
(3) During the hearing, any party may submit oral evidence in support of its own
contentions by way of the voluntary appearance of witnesses.
(4) The Independent Expert may, at his or her discretion, request the submission of
further documentary evidence from the parties or request the presence of other
witnesses or expert witnesses.
12 Conclusion of the Proceedings
(1) The Independent Expert shall, when satisfied that all contentions and evidence
of the parties have been submitted, conclude the proceedings.
(2) The Independent Expert shall deliver his or her decision to the Secretariat
within 10 days of the date of establishment.
(3) The decision of the Independent Expert shall be confined to the issues raised
by the Application for Review and Reply.
(4) The decision shall be formulated in accordance with the form provided for in
the Manual of Procedures.
(5) The Clerk to the Independent Expert shall immediately notify all parties of the
decision and shall arrange for the publication of the decision as appropriate.
Regulation 79 Public Procurement Regulations 2015
(6) The decision of the Independent Expert shall be final and binding on all parties,
subject only to appeal to the High Court.
Made at Nuku’alofa this 17 day of July 2015.
Hon. Tevita Lavemaau
Acting Minister of Finance and National Planning