Public Procurement Regulations 2015

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Public Procurement Regulations 2015






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PUBLIC PROCUREMENT REGULATIONS

2015


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PUBLIC PROCUREMENT REGULATIONS 2015

Arrangement of Sections

Regulation

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

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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

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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 –
PRELIMINARY






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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.

2 Interpretation

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;

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“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

envisaged;

“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

Regulation 8;

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“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

those obligations;

“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

entities.

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(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.

4 Exemptions

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

military purposes;

(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

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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

the following:

(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

more particularly:

(a) give notice of meetings of the Government Procurement

Committee;

(b) take accurate minutes of meetings of the Government

Procurement Committee and provide copies to members of the

Government Procurement Committee and to affected

procurement officers;

(c) keep records of the business of the Government Procurement

Committee;

(d) prepare the correspondence of the Government Procurement

Committee; and

(e) carry out such other tasks in relation to procurement as are

assigned by these Regulations or the Government Procurement

Committee.

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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

Committee.

(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.

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(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

matter.

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

procurement units;

(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

procurement units.

(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

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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

Division;

(c) the management of funds, budget and other property of the

Division; and

(d) the performance of such other functions as the Minister may

determine.

(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

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provide opinion on, any specific procurement or contract award

decision;

(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

performance;

(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

Division;

(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

consultants;

(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

standards;

(j) establish and maintain secretariat support to the Government

Procurement Committee;

(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



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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

specification;

(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-

voting member.

(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;

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(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

9(4);

(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

these Regulations.

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

its disposal.

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(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

regulation 18(3);

(b) approve procurement proposal and ensure its dispatch to the

Procurement Division in accordance with the provisions of

regulation 19(3);

(c) approve the bid evaluation report and contract award

recommendation;

(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

Procurement Division;

(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

Division;

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(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

basis.

(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

Procurement Division;

(b) publish and dispatch requests for quotation and invitations to bid;

(c) receive and safeguard quotations, bids and applications to pre-

qualify;

(d) respond to requests for clarification from bidders, seeking the

assistance of the procurement unit of the contracting entity where

appropriate;

(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;

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(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

Procurement Division.

(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
PLANNING

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:

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(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

these Regulations.

(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

allotted; and

(c) ensure that funds for future fiscal years are included in budgets

for subsequent fiscal years and reported to the Ministry of

Finance, without prejudice to a reservation by the 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

budget.

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

prepared; and

Regulation 16 Public Procurement Regulations 2015



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(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

of funding;

(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

requirements;

(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

National Planning.

(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





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(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,

individual lots;

(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

services;

(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

website.

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

following:

(a) insurance services: the premium payable and other forms of

remuneration;

(b) design contracts: fees, commission payable and other forms of

remuneration.

Regulation 18 Public Procurement Regulations 2015



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(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

procurement method.

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

administration resources;

(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-

regulation (3);

Public Procurement Regulations 2015 Regulation 18





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(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

Finance.

(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

potential bidders;

(b) when items will be ready for bidding and when delivery,

implementation or completion is required;

(c) the optimum size and type of contract to attract the greatest and

most responsive competition, taking into account the market

structure for the items required;

(d) 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

them.

Regulation 20 Public Procurement Regulations 2015



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PART 5 – PROCUREMENT REQUIREMENTS AND
QUALIFICATION CRITERIA

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

appropriate:

(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

safety features;

(e) performance parameters, including outputs, timescales and

any indicators or criteria by which satisfactory performance can

be judged;

(f) process and materials descriptions;

(g) dimensions, symbols, terminology language, packaging, marking

and labelling requirements;

(h) inspection and testing requirements; and

(i) any applicable standards.

(4) References to standards shall where possible be references to

international standards or national standards incorporating international

standards.

(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

services;

Public Procurement Regulations 2015 Regulation 23





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(b) a delivery and completion schedule;

(c) specifications; and

(d) drawings.

(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



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(d) a list the services and surveys necessary to carry out the

assignment;

(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

requirements;

(h) any facilities, services or resources to be provided by the

contracting entity;

(i) indicators of successful performance; and

(j) the duration of the assignment in terms of man months and period

of completion.

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

specifications.

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





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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

qualifications.

(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

of:

(a) experience and reliability, including evidence of past

performance;

(b) financial resources, equipment and other physical facilities;

(c) personnel;

(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

standards; and

(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



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(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

jurisdiction;

(b) the bidder is not insolvent, in bankruptcy, in receivership or under

liquidation; and

(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

elsewhere:

(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

elsewhere.

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





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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

process.

(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

requirement;

(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

Regulations.

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

regulation 38(2);

(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



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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

Part 9.

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;

and

(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





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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



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(b) prequalification documents shall provide bidders with the

information required to prepare and submit applications for

prequalification; and

(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

from:

(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

Procurement Division;

(b) lists of pre-qualified bidders;

Public Procurement Regulations 2015 Regulation 34





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(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

procurement requirement;

(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

substitute exists;

(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

original development;

Regulation 30 Public Procurement Regulations 2015



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(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;

and

(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

bidders;

(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





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(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

electronically.

(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

the contract;

(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



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37 Invitations to bid

(1) The Limited Bidding Method shall be conducted in accordance with

regulation 34.

(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

regulation 33(1)(b).

38 Publication of procurement notices

(1) The notice of invitation to bid or to pre-qualify, as the case may be, shall

be:

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;

and

(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:

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(a) identity and address of the contracting entity and the contact

details of the person from whom further information can be

obtained;

(b) description and time-frame of the procurement, including the

place of delivery of goods or services, and the location of any

works;

(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

deadline.

(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

33);

(e) 30 days for selective bidding, where the bidding is international;

and

(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

applications.

(5) In determining the appropriate bidding period for each requirement, the

contracting entity shall take into account, in addition to the minimum

bidding period:

(a) the time required for preparation of bids, taking into account the

level of detail required and the complexity of bids;

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(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

are required.

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

of charge.

(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;

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(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

evaluated;

(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

successful bidder;

(n) a notice of conflict-of-interest restrictions and anti-fraud and

corruption rules;

(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.

41 Clarifications

(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

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event no later than 2 days prior to the deadline for the submission of bids

or proposals.

(3) Responses to requests for clarification shall be communicated

simultaneously and in writing to all bidders participating in the

procurement proceedings.

(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

documents; and

(c) clearly state the benefits of the alternative bid over any solution

which conforms precisely to the description of requirements, in

terms of technical performance, price, operating costs or any other

benefit.

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

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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

the:

(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

necessary;

(d) insufficient, or no responsive bids are received;

(e) there is evidence of collusion among bidders; or

(f) it is otherwise in the public interest.

(2) 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.

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(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

bidders.

(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

taken.

(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;

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(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

required.

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.

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(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

contract.

(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

bidding document;

(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

period.

(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

documents.

(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.

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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

recorded.

(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

bids.

50 Confidentiality

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.

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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

document;

(d) the bid has been correctly signed and authorised;

(e) the correct number of copies of the bid have been submitted;

(f) the bid is valid for at least the period required;

(g) all key documents and information have been submitted;

(h) any required samples have been submitted; and

(i) the bid meets any other key requirements of the bidding

document.

(3) Bids are responsive where they are found to be ‘substantially

responsive’.

(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

documents; and

(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

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(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

prequalification.

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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

permitted to:

(a) amend its bid price, except to accept the correction of arithmetic

errors;

(b) change the substance of the bid; or

(c) substantially alter anything which is a deciding factor in the

evaluation.

(4) Any clarification received which is not in response to a request from the

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.

54 Disqualification

(1) The contracting entity shall disqualify a bidder if it finds that the

information submitted in a bid concerning its qualifications is false or

misleading.

(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.

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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

responsive.

(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

be either:

(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;

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(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

document; and

(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

contract; or

(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.

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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.

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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

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documents and contract, such security to be provided prior to contract

signature.

(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

security relates.

(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

bidding document;

(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
SERVICES

61 Request for proposals method

(1) The request for proposals method shall be used for the procurement of

consultancy services.

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(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

of interest.

(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

professional journal.

(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;

and

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(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

assignment;

(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

used when:

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(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

documents.

(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.

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(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

budget.

(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.

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(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

reputation.

(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

its bid.

(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.

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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

Division.

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

reference number.

(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

following:

(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;

and

(h) any other information required to be recorded under these

Regulations.

(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.

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(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

officer:

(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

information.

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

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(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

enforcement authorities.

(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.

70 Debarment

(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

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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

failure:

(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

omissions; 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

procurement;

(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

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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

emergency procurement.

72 No contract award

No contracting entity shall award a contract to a bidder which has been

debarred.

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:

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(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

is earlier;

(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

proceed and

(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

Attorney-General’s Office.

(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.

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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

the decision;

(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

establishment.

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

76(2);

(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.

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(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

(6):

(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.

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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.






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SCHEDULE 1

DEBARMENT PROCEDURE

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

secretariat services.

(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

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Debarment Officer together with any documentary evidence at his

disposal.

(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

supporting evidence;

(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

section 7(1)(b).

(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;

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(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

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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

take;

(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

presented;

(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.

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(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

Committee.

(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.

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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

practice.

(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

“passive”);

(c) the magnitude of any losses caused by the Respondent and

damage caused by the Respondent to the credibility of the

procurement process;

(d) the past conduct of the Respondent involving a prohibited

practice;

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(e) the extent to which the Respondent cooperated in the investigation

and whether such cooperation is of substantial benefit to the

contracting entity;

(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

offence.

(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

Debarment.

(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,

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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

period.

(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

evidence;

(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.

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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

improper conduct

(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

conduct

(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

bids;

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(d) not evaluate any proposals, quotations, or offers received from

them or enter into discussions with them during the period of

ineligibility;

(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

the bidder;

(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

discretion.

(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.

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(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

evidence;

(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.






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SCHEDULE 2

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

Service;

(d) shall be a person of good reputation in the community and enjoy public

confidence;

(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

servants.

(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

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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.

3 Secretariat

(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

Expert;

(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.

4 Representation

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

representation.

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:

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(a) a completed Application for Review Form in the form provided for by the

Secretariat;

(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

of attorney.

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.

7 Reply

(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

documents:

(a) a written Reply to the Application for Review in the form provided by

the Secretariat;

(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

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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.

8 Registration

(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

File.

(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.

10 Hearing

(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

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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.

11 Evidence

(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.

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(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

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