CHAPTER 42:08
PUBLIC PROCUREMENT AND ASSET DISPOSAL
ARRANGEMENT OF SECTIONS
SECTION
PART I
Preliminary
1. Short title
2. Interpretation
PART II
Scope of the Act
3. Application
4. External obligations
5. Procurement for external obligations
6. Derogation
7. Fair treatment
8. Contribution to other entities
9. Discrimination and underpricing
PART III
Establishment, Constitution and Membership of the Board
10. Establishment of the Board
11. Composition of the Board
12. Appointment to the Board
13. Conditions of service
14. Tenure of Board members
15. Termination of membership to the Board
16. Resignation
17. Filling of vacancies of the Board
PART IV
Meetings and Proceedings of the Board
18. Meetings of the Board
19. Signification of documents
20. Method of work of the Board
21. Appointment of Secretary to the Board
22. Functions of the Secretary
23. Accountability to the Board
24. Conditions of service of Secretary
25. Co-option of advisory personnel
PART V
Functions and Powers of the Board
26. Functions and powers of the Board
27. Compliance with the Act
28. Advise stakeholders
29. Standardised bidding package
30. National standards specification
31. Derogation by Board
32. Approval of specific instructions
33. Revision of bid packages
34. Legal status of bid packages correspondence
35. Evaluation procedures
36. Evaluation and adjudication
37. Power to adjudicate
38. References
39. Industry standards
40. Precedent to be followed
41. Alterations to awarded bids
42. Changes in bidder’s circumstances
43. Inclusion of all relevant clauses in bidding packages
44. Retroactive approval
45. Availability of funds
46. End of activity report
47. Resiling from agreements
48. Recommendation of systemic improvements
49. Management of contractors registration system
50. Establishment of committees and delegation of power
51. Operational modalities of sub-committees
52. Obtaining of information
53. Redressing complaints
54. Dispute resolution
55. Methods of procurement
56. Electronic procurement
57. Medium of communication
PART VI
Financial and Administrative Provisions
58. Financing of the Board
59. Technology, data-bases and manpower
60. Annual and medium term plans
PART VII
Devolution of Public Procurement and Asset Disposal Management
61. Establishment of Ministerial Committees
62. Responsibilities of Ministerial procurement and Asset disposal Committees
63. Special Procurement Committee
64. District Administration Committees
65. Financial ceilings
PART VIII
Reserved and Preferential Treatment
66. Economic and social objectives and procurement
67. Empowerment of citizen contractors
68. Process for preferential schemes
69. Certification of eligibility
70. Eligibility for preference
71. Reserved schemes
72. Procurement preferences and reservation schemes
73. Scale of preference
74. Ranking of bids
75. Preference for supplies
76. Prime contractor and subcontractor
PART IX
Accountability and Transparency: Audit and Ethics
77. Independent auditor
78. Liability of auditor
79. Audit by the Auditor General
80. Audit recommendation and the Board
81. Availability and comments on report
82. Co-operation with the auditors
83. Facilitating investigations
84. Maintenance of records
85. Access to documentation and data bases
86. Obligation to advertise
87. Publicity and the media
88. Disclosure of interest by members of the Board
89. Confidentiality obligations
90. Code of ethics and declaration of business interests
91. Classification of information
92. Rights of review and research
93. Declassification of information
94. Transmission of documents
PART X
Establishment of the Independent Complaints Review Committee
95. Independent Committee
96. Composition
97. Appointment
98. Levels and institutional representation
99. Conditions of service of Committee
100. Secretary of Independent Committee
101. Co-option of experts
102. Modalities of operation
103. Scope of responsibilities
104. Requirements in respect of grievances
105. Exemption
106. Meeting of costs
107. Imposition of fines
108. Award of costs
109. Co-operation with the Secretary
PART XI
Advisory Committee on Public Procurement and Asset Disposal
110. Establishment of Advisory Committee
111. Membership of Advisory Committee
112. Meetings and functions of Advisory Committee
113. Appointment to Advisory Committee
114. Conditions of service of Advisory Committee
115. Method of work of Advisory Committee
PART XII
Registration of Contractors
116. Register of contractors
117. Requirements to be registered
118. Domicile and registration
119. Registration and pre-qualification
120. Non-eligibility for non-registered contractors
121. Classification of contractors
122. Review of register
123. Code of conduct of contractors
124. Suspension and de-listing from the register
125. Non-registration of suspended contractors
126. Restriction on defaulting contractor
127. Procedures and regulations
PART XIII
General Provisions
128. Offences
129. Immunities
130. Regulations
131. Repeal and savings
132. Transitional period
Act 12, 2008,
S.I. 72, 2008.
An Act to establish the Public Procurement and Asset Disposal Board and its committees and provide for the procurement of works, supplies and services, for the disposal of public assets and related matters.
[Date of Commencement: 2nd July, 2002]
PART I
Preliminary (ss 1-2)
This Act may be cited as the Public Procurement and Asset Disposal Act.
In this Act, unless the context otherwise requires—
“Advisory Committee” means the Advisory Committee on Public Procurement and Asset Disposal established under section 110;
“any combination thereof, however classified” means turnkey projects, build own operate projects, build operate and transfer projects or any arrangement following in this genre, which may also include management, maintenance, testing, commissioning or training;
“bid” means tender and vice versa or an invitation by—
(a) a procuring entity for a provider (works, supplies or services); or
(b) a disposing entity for interested parties,
to submit a competitive offer in relation to a public solicitation for a specific activity which shall include design assignments;
“bidding document” means a standard bidding package, which shall include, in relation to—
(a) works—
(i) invitation to bid;
(ii) specific instructions to bidders;
(iii) form of bid;
(iv) form of contract;
(v) conditions of contract (general and particular);
(vi) specifications and design drawings,
(vii) bills of quantities or equivalent documents approved by the Board;
(viii) schedule of commencement, delivery, completion, etc.; and
(ix) securities; or
(b) services—
(i) letter of invitation;
(ii) instructions or briefs to bidders;
(iii) description of services to be supplied;
(iv) terms of reference;
(v) technical proposal;
(vi) financial proposal (where applicable);
(vii) schedules; or
(viii) standard forms of contracts; and
(c) supplies—
(i) letter of invitation;
(ii) instructions to suppliers;
(iii) description of supplies;
(iv) technical specifications;
(v) financial proposal (where applicable);
(vi) schedules relating to delivery, payment, etc., or
(vii) standard forms of contracts; and
(d) in respect of paragraphs (a), (b) and (c) above, any other relevant forms, documents, correspondences and clarification.
“Board” means the Public Procurement and Asset Disposal Board established under section 10;
“Citizen Contractor” means a natural person or an incorporated company wholly owned and controlled by persons who are citizens of Botswana;
“Committee” means a Committee of the Public Procurement and Public Asset Disposal Board, established by a decision of the Board, and delegated specific functions and powers by the Board in respect of public procurement or the disposal of public assets under the Act;
“contract” means an agreement between a procuring entity or a disposing entity and a contractor resulting from the application of the appropriate and approved procurement or disposal procedures and proceedings, and shall be concluded in pursuance of a bid award decision by the Board or one of its Committees;
“Contractor” or “provider” are used interchangeably and mean a natural person or an incorporated body licensed by the competent authority to undertake works, services, supplies, or any combination thereof, however classified;
“Department” means a public entity, an extra ministerial body or a subdivision of the central Government, including schools and hospitals that derive their regular funding from the Consolidated Fund;
“disposal” means the divestiture of public assets, including intellectual property rights and goodwill, and any other rights of the State, by any means, including sale, rental, lease, licences, tenancies, franchises, auction or any combination thereof, however classified;
“disposing entity” means any Ministry or department duly authorised to engage in public procurement;
[12 of 2008, s. 2.]
“District Committees” means the District Administration Public Procurement and Asset Disposal Committees established under section 64;
“Executive Chairperson” means the Executive Chairperson of the Public Procurement and Asset Disposal Board appointed under section 12(1);
“Independent Committee” means the Independent Complaints Review Committee established under section 95;
“industry standards” means best practices which shall include practices and standards which—
(a) are safe and environmentally friendly;
(b) are innovative and increase efficiencies;
(c) save time and costs;
(d) relate to materials, processes, methods, designs, equipment, products, services and practices; and
(e) are as defined and coded by internationally recognised contractors’ associations and professional bodies in the concerned fields;
“local contractor” means a contractor whose operation is based in Botswana irrespective of the contractor’s nationality or domicile;
“Minister” means the Minister for Finance;
“Ministerial Committee” means the Ministerial Public Procurement and Asset Disposal Committee established by the Public Procurement and Asset Disposal Board at the ministerial level and vested with authority to conduct public procurement and the disposal of public assets on behalf of its departments, consistent with the procedures set out in this Act;
“pre-qualification” means a screening process designed to ensure that invitations to bid are confined to capable firms;
“procurement” means the acquisition in the public interest by any means, including by purchase, rental, lease, hire-purchase, licences, tenancies, franchises, etc., of any type of works, services or supplies or any combination thereof, however classified, and shall include management, maintenance and commissioning;
“procuring entity” means any Ministry or department duly authorised to engage in public procurement;
“Public Oversight Agencies” means the Attorney-General’s Chambers, the Auditor General’s Office, the Directorate on Corruption and Economic Crime, the Office of the Ombudsman and any other institution charged with a responsibility to oversee the activities of other Government departments;
“Registered Contractor” means a contractor registered with the Public Procurement and Asset Disposal Board in terms of this Act and any regulations made thereunder;
“services” means all services, other than works and supplies, including banking services, insurance coverage, travel services, cleaning services, etc., and includes consultancy services;
“specifications” means National Standards Specifications, and includes—
(a) a generic or functional description of the qualities required of a procurement item;
(b) the relevant industry standards of approaching and executing the assignment in question; and
(c) the appropriate good practice tests that are to be used to verify the specified quality and performance of the procured item before delivery, on delivery, during installation, and in the course of operation, as applicable and the use of which shall be mandatory in all bidding packages;
“supplies” means goods, raw materials, products, equipment or objects of any kind and description in solid, liquid or gaseous form, and in the form of electricity, as well as services incidental to the provision of such supplies;
“Tender Notice” means any invitation to eligible contractors to submit written offers to provide works, services and supplies, or any combination thereof; and
“works” means any work associated with the construction, reconstruction, demolition, repair, or renovation of a building or structure, on the surface or underground, on and under water, and includes the preparation, excavation, erection, assembly, installation, testing and commissioning of any plant, equipment or materials, decoration and finishing, as well as services incidental to or independent of the foregoing works such as drilling, mapping, satellite photography, seismic investigations, similar services, and any combination thereof provided pursuant to a procurement contract.
PART II
Scope of the Act (ss 3-9)
The provisions of this Act shall apply to—
(a) all entities of the central Government which are involved in public procurement or the disposal of public assets, whether they are located abroad or within Botswana;
(aa) all land boards;
[12 of 2008, s. 3.]
(ab) all parastatals, statutory organisations and local authorities, in accordance with the provisions of section 8, except where exempted by the Minister by notice published in the Gazette;
[12 of 2008, s. 3.]
(b) the procurement or disposal of all assets acquired by any means, including—
(i) purchase;
(ii) rental;
(iii) lease;
(iv) hire-purchase;
(v) licences;
(vi) tenancies;
(vii) franchises; or
(viii) auctions, etc.;
(c) the procurement of all works, services, supplies, or any combination thereof, however classified; and
(d) the disposal of serviceable and unserviceable—
(i) physical properties and land;
(ii) items acquired through works, services or supplies contracts;
(iii) intellectual and proprietary rights;
(iv) financial instruments, including shares, stocks, bonds, etc.; and
(v) goodwill and any other rights of the State.
(1) To the extent that this Act conflicts with any obligations of the Republic of Botswana under or arising from any treaty or other agreement to which Botswana is a party, the requirements of such treaty or agreement shall prevail over this Act.
(2) Where such treaty or agreement contains provisions favourable to citizen and local contractors, full advantage shall be taken of these in the interest of promoting domestic capacity development.
(3) If Botswana is required under the terms of any treaty or agreement to which she is a party to contribute from her own resources, in any form, to any procurement activities within Botswana in part or wholly, jointly or separately, then procurement through such contributions shall be—
(a) in discrete activities where possible; and
(b) subject to the applicable provisions of this Act.
(4) The disposal of any, or all of the products, or public assets accruing to Botswana as a result of procurement activities made under subsections (1) and (2) shall, similarly, be subject to the appropriate provisions of this Act.
5. Procurement for external obligations
Where the procurement, in the context of section 4(1) favours an external beneficiary, then—
(a) procurement through contributions made by Botswana shall be undertaken in Botswana, through contractors registered in Botswana;
(b) all relevant insurances shall be placed with companies registered in Botswana; and
(c) supplies shall be transported in carriers registered in Botswana.
A derogation from the application of the relevant provisions of this Act in respect of sections 4 and 5 may be applied for to the Board, on the prescribed form, by the competent agency responsible for the procurement or disposal in question, with supporting documentation and justification.
Where, for reasons of limitations of capacity, contractors registered in Botswana are unable to satisfy wholly or in part, the specific procurement requirements, they shall be offered an equal opportunity to participate in the bidding process of the beneficiary entity (in conjunction with firms in that country) and where applicable to offer such requirements from third sources.
8. Contribution to other entities
Contributions by the Government of Botswana in any form to entities such as parastatals, local authorities, private companies, non-governmental bodies, charities and trusts, etc., falling outside of the scope of this Act, which entail procurement activities and the subsequent disposal of the products of such procurement activities, shall be—
(a) kept discrete and identifiable as far as possible; and
(b) subject to the applicable procurement or disposal provisions of this Act.
9. Discrimination and underpricing
(1) In the event of evidence demonstrating—
(a) discrimination of any form against Botswana registered contractors by private firms or public entities of any other country, either in that country or in a third country, in respect of procurement or disposal activities; or
(b) discrimination or underpricing or action to this effect by public or private entities of Botswana or public or private entities from another country, which limits competition and places locally registered firms at a disadvantage in the domestic market in respect of procurement or disposal activities,
the Board shall in consultation with other interested parties and bearing in mind any treaty obligations of the Government, submit recommendations to the Minister on commensurate measures to compensate for the injustices.
(2) The Minister shall on approval of the recommendations, cause the requisite counter measures to be taken by the competent agencies.
PART III
Establishment, Constitution and Membership of the Board (ss 10-17)
10. Establishment of the Board
There is hereby established a body to be known as the Public Procurement and Public Asset Disposal Board (hereinafter referred to as “the Board”), which shall be a body corporate with a common seal, capable of suing and being sued in its own name and, subject to the provisions of this Act, of doing or performing all such acts or things as bodies corporate may, by law, do or perform.
The Board shall consist of:
(a) a full time Executive Chairperson;
(b) three full time Members; and
(c) three part time Members.
(1) The Minister shall appoint the Executive Chairperson and members of the Board.
(2) The part time members of the Board shall be appointed from among nominees of the associations of contractors and professional bodies and the private sector.
The Minister shall determine conditions of service and remuneration of Members of the Board.
All Members of the Board, including the Executive Chairperson, shall be—
(a) appointed for a period not exceeding four years; and
(b) eligible for re-appointment for only one further term, not exceeding four years.
15. Termination of membership to the Board
The Minister may at any time terminate the appointment of any Member of the Board on the grounds that the member—
(a) is responsible for some act, misconduct, default or breach of trust in the discharge of his duties;
(b) commits an offence or act of such nature as renders it desirable that his appointment should be terminated;
(c) is absent from three consecutive meetings of the Board without leave of the Board;
(d) has become insolvent or bankrupt under any law in force in Botswana and such member has not been rehabilitated or discharged or has made a composition with his creditors and has not paid his debts in full;
(e) suffers from a physical or mental illness or infirmity;
(f) is sentenced to imprisonment without the option of a fine or has been convicted of any offence involving dishonesty; or
(g) becomes a Member of the National Assembly or a Councillor of a local authority.
[12 of 2008, s. 4.]
A Member of the Board may resign from the Board by submitting, to the Minister, written notification three months, prior to the date of the termination of his membership.
17. Filling of vacancies of the Board
On the death of, or the vacating of office by, a Board member, the Minister shall appoint another person to take the place of the member who died or vacated his office until the expiry of the period during which such member would have otherwise continued in office.
PART IV
Meetings and Proceedings of the Board (ss 18-25)
(1) Subject to the provisions of this Act, the Board shall regulate its own procedures.
(2) The Board shall meet as often as it is necessary or expedient for the proper discharge of its functions.
(3) The Executive Chairperson shall call and preside over all meetings of the Board, and in his absence, the Board Members present shall elect, from among their number, an acting Executive Chairperson to facilitate the conduct of its regular or unscheduled meetings.
(4) Two full time members and one part time member shall constitute a quorum of the Board:
Provided that when a member has declared an interest in an agenda item or a matter before the Board, in accordance with section 88(1), the member in question shall not be counted for the purpose of forming a quorum in relation to the item or matter in question.
(5) The decision of the Board shall be by a majority of votes and, in the event of an equality of votes, the Executive Chairperson shall have a casting vote in addition to his deliberative vote.
(6) The proceedings of each meeting of the Board shall be recorded and confirmed at the subsequent meeting of the Board.
19. Signification of documents
All documents made by and all decisions of the Board may be signified under the hand of the Executive Chairperson, or any member of the Board generally or specifically authorised by the Act.
20. Method of work of the Board
The procedures and processes to be used in the conduct of the business of the Board shall be prescribed in the Regulations.
21. Appointment of Secretary to the Board
The Board shall with the concurrence of the Minister, appoint a Secretary of the Board, who shall be suitably experienced and trained in the legal discipline to a level appropriate for the seniority of the position.
22. Functions of the Secretary
(1) The Secretary of the Board shall attend meetings of the Board but without the right to vote, and shall—
(a) advise the Board on all legal and procedural issues in respect of its deliberations and decisions;
(b) be responsible for the accurate and complete recording of the Board’s proceedings and decisions; and
(c) be responsible for all legal business of the Board and institutional linkages and representation of the Board.
(2) The Secretary of the Board may attend the meetings of any of the Board’s Committees, or that of any procuring or disposal entity dealing with a procurement or disposal activity, to observe and record its proceedings and decisions, and recommend thereafter to the Board, on legal or procedural grounds, any action to correct or improve the operational modality of the entity in question or to reverse its decision or suspend its operations.
(3) The Secretary of the Board shall be the liaison officer between the Board and the Independent Committee.
(4) The Secretary of the Board or his nominee shall serve as Secretary to the Advisory Committee on Public Procurement.
(5) The Secretary of the Board shall represent the Board, its Committees and the public procurement and asset disposal entities in all legal proceedings and enquiries in respect of procurement and disposal activities.
23. Accountability to the Board
The Secretary of the Board shall be accountable to the Board, through the Executive Chairperson, for his functions and responsibilities.
24. Conditions or service of Secretary
(1) The conditions of service including the remuneration package of the Secretary shall be set by the Board with the concurrence of the Minister.
(2) The Secretary shall be appointed for a period of four years and may be eligible for re-appointment for only one further term not exceeding four years.
(3) The Board may, with the concurrence of the Minister, terminate the services of the Secretary on any of the grounds set out in section 15.
(4) The Secretary may resign by submitting to the Board written notification three months prior to the date of termination of his position.
25. Co-option of advisory personnel
(1) The Board may co-opt such number of persons as may be necessary and capable of assisting the Board in the conduct of its regular business or to undertake occasional assignments.
(2) Co-opted members shall—
(a) have no right to vote; and
(b) be remunerated at the standard rates for professional services, set by the Board and reviewed by the Board on a biennial basis.
PART V
Functions and Powers of the Board (ss 26-57)
26. Functions and powers of the Board
Unless otherwise provided for in this Act or any other enactment, the Board shall ensure that all public procurement and asset disposal entities, in making their decisions, take into account the principles of—
(a) an open, competitive economy and changing external obligations in relation, generally to trade and specifically to procurement, which dynamically impact on a continual basis on domestic procurement policy and practice;
(b) standardisation of procurement items in the interest of cost reduction, ease of maintenance and technological effectiveness;
(c) aggregation of procurement and disposal activities and items that are common to procuring or disposing entities in order to benefit from economies of scale;
(d) competition among contractors by using the most efficient and competitive methods of procurement or disposal to achieve the best value for money;
(e) fair and equitable treatment of all contractors in the interest of efficiency and the maintenance of a level playing field;
(f) accountability and transparency in the management of public procurement and in the disposal of public assets in order to promote ownership of the system and minimise challenges thereto; and
(g) integrity, fairness of and public confidence in, the procurement and disposal process.
The Board shall ensure that all procuring and disposing entities comply fully with all the provisions of the Act, irrespective of the means of procurement, disposal, or the assets to be procured or to be disposed of.
The Board shall advise procuring, and disposing entities on all aspects of procurement and disposal management and particularly on the application of the provisions of the Act.
29. Standardised bidding package
The Board shall adopt and circulate, and amend where necessary, standardised bidding packages and public assets disposal contracts which shall be used on a mandatory basis by all procuring and disposing entities.
30. National standards specification
(1) Where national standards specifications have not yet been issued, the Board shall, in the interim determine, after consultations with relevant stakeholders, which country’s or institution’s standards specifications shall be substituted on a mandatory basis by all procuring and disposing entities in their respective bidding packages.
(2) Where neither standardised bidding packages nor national standards specifications exist for a specific context, a procuring or disposing entity shall seek the Board’s prior written approval to use an alternative.
In exceptional cases, the Board shall permit a procuring or disposing entity to depart from sections 29 and 30, based on a prior written application to the Board detailing the variation being sought with supporting justifications, satisfactory to the Board.
32. Approval of specific instructions
(1) The Board shall examine instructions and the conditions of contract contained in each bidding package prior to the issuing of a Tender Notice, and more generally, review and assent to any specific part, or the whole of the bidding package, and obtain changes where these are deemed by the Board to be necessary before they are issued to bidders.
(2) The Board shall ensure that the instructions and conditions of contract in bidding packages are congruent with the Act.
(3) In the event that the general and specific conditions in bidding packages and the client’s instructions to bidders are incongruent with the Act, the latter shall take precedence.
The Board or its Committees shall, at any point between its review of a bid package and the award of a bid, return such bid to the procuring or disposing entity to make amendments to the bid package should it establish that the bid package—
(a) is deficient in any specific respect which, unless it is addressed immediately, is likely to result in multiple variations, delays and spiralling costs; and
(b) patently fails to vest in one contractor (when the bid entails more than one contractor or is part of a larger activity) overall responsibilities for the full and timely scheduled bid outputs; or to put in place alternative arrangements (be they departmental or project management mechanisms) to achieve same, and thereby cause serious implementation slippage on account of overlapping, ill-defined, or missing links in the chain of command for successful implementation on the ground.
34. Legal status of bid packages correspondence
From the time a Tender Notice is issued, all—
(a) correspondence between the bidder and the procuring entity or the Board (including the bidding package) up to the point of adjudication by the Board; and
(b) communications between a bid winner and a procuring entity or the Board up to the point of signing of the contract and thereafter, throughout the period of the execution and completion of the contract,
shall be deemed to form part of the contract and thus have legal validity.
(1) Procuring and disposing entities shall—
(a) in all bid packages, provide for instructions, the criteria to be used in the evaluation process, the value and weights to be attached to each criterion, and the evaluation procedure or methodology to be followed in the conduct of the evaluation; and
(b) establish which procurement methods and procedures shall apply in each case and class of bids, except in emergencies when either sole procurement or competitive negotiations methods and procedures may apply.
(2) Only substantially responsive bids shall be considered for comparison, evaluation, adjudication and award.
(3) The issuing of a bid or an invitation to tender for a procurement or disposal activity that does not comply with the applicable procedures under the Act shall be deemed to be invalid.
36. Evaluation and adjudication
In the evaluation and adjudication of a bid, no factor outside those explicitly stated in the bidding package shall be taken into account by the evaluators or the adjudicators in arriving at a recommendation or in making an award, unless there are extenuating reasons to use additionally, an industry standard or best practice.
(1) The Board shall adjudicate bid recommendations submitted to the Board by competent bodies and award those bids.
(2) The Board may return bid recommendations for reconsideration, reject recommendations, appoint an independent evaluation team to re-evaluate bids and on its sole determination, make an award to the most compliant bidder, detailing in such instances in its proceedings the precise grounds for the action it has taken.
Notwithstanding the provisions of section 35, evaluators and adjudicators shall take into account in ranking, recommending and approving pre-qualification and in adjudicating and awarding bids—
(a) references cited by pre-qualification applicants and bidders; and
(b) independent references, in cases in which the evaluating or adjudicating entity regards this to be essential to form a clear view of the physical and financial capacity or performance record of pre-qualification applicants or bidders in terms of their capacity to successfully execute an awarded bid.
Where there are extenuating reasons for evaluating or adjudicating entities to use industry standards as a supplementary or alternative evaluation method to that set out in the bidding package, the prior approval of the Board shall be required and the concerned entity shall advise all pre-qualification applicants or bidders of this in advance, indicating to them in writing—
(a) which industry standard or best practice is to be followed;
(b) the specific criteria and the values and weights to be attributed to each in the conduct of the evaluation and adjudication; and
(c) the percentage of the total points, the supplementary or alternative standards shall account for.
Where there is a conflict between section 39(a) and any of the provisions of the Act it shall be brought to the attention of the Board, in writing by any interested party immediately, for a decision, on which shall take precedence.
41. Alterations to awarded bids
(1) Any alteration to the conditions of an awarded bid either before or in the course of its implementation by a procuring entity, that in effect—
(a) could have impacted on the evaluation and adjudication ranking of the bid and thus, the choice of contractor;
(b) amends the nature of the awarded bid in terms of contract cost, implementation schedule, components, aggregation or splitting, etc.; and
(c) determines the awarded bid,
shall require the prior written approval of the Board.
(2) Subsection (1) shall not apply to normal variations in the execution of a contract once such variations are within the contingency sum of a bid approved by the Board or its Committees.
(3) Guidelines for the variations referred to in subsection (2) shall be prescribed in the Regulations.
42. Changes in bidder’s circumstances
Where there are any changes in the circumstances of a bidder, from the point of the submission to the adjudication of a bid, or in the event of an award or at any point thereafter, including execution that could materially affect the bidder’s capacity to successfully deliver the required scheduled outputs, this shall be immediately drawn to the attention of the Board or a Committee or the procuring entity by the bidder itself or by any party with an interest in the activity or process in question.
43. Inclusion of all relevant clauses in bidding packages
In the conduct of their business, the Board, its Committees and procuring or disposing entities shall—
(a) include in all bidding packages all relevant, standard clauses in respect of assurances, warranties, bonds, insurances etc.;
(b) ensure that the relevant penalty clauses are contained in all bid packages and shall apply them in respect of non-performance by contractors; and
(c) not waive provisions relating to good practices and exempt a party from any liability relating to negligent conduct, and thereby not expose the Government to unnecessary commercial risks and liabilities.
132. Transitional period
Except as otherwise provided in this Act, all departments shall be required to bring their procurement and disposal practices into conformity with this Act within a period of one year from the date of entry into force of this Act.