Procurement Law (International) : Uncitral

Procurement Law (International)
UNCITRAL
United Nations commission on
International Trade Law
UNCITRAL Model Law on procurement

(goods, construction & services)
Adopted by UNCITRAL at its 26th session
1
Objective of the law
Maximizing economy & efficiency
Encouraging participation of suppliers &
contractors regardless of nationality
Promoting competition
Providing fair & equitable treatmnet
Promoting integrity, fairness & public
confidence
Achieving Transparency
2
Procurement means acquisition by
any means of
Goods
Construction or
Services
Goods means
Raw materials, products, equipment, objects in solid, liquid
or gaseous form and electricity, services incidental to supply
3
Goods means
Raw materials, products, equipment,
objects in solid, liquid or gaseous form and
electricity, services incidental to supply
Construction Means
All work associated with construction,
reconstruction, demolition, repair or
renovation……
4
Services means
Any procurement other than goods or
construction
Qualification of suppliers & contractors
Possess professional & tech. qualification…
Have legal capacity
Are not insolvent or bankrupt……
Fulfilled obligations to pay taxes
5
Qualification of suppliers & contractors
Directors have not been convicted of
criminal any criminal offence…..
Contractor or supplier may be required
to submit appropriate evidence
No criteria other than provided above
shall be used
Evaluation based on Qualification Criter
6
No criteria shall discriminate on the
basis of nationality or based on not
objectively justifiable
A contractor or supplier shall be
disqualified if
Information submitted was false
Information submitted is inaccurate or
incomplete
7
Disqualification (cont.)
failure to remedy inaccurate or
incomplete data if requested may disqualify
Records of procurement
Rejection of all tenders
Procuring entity may reject all tenders,
offers
Upon request the procuring entity shall
communicate grounds for rejection but not
required to justify
Procuring entity shall incur no liability 8
Publish notice of procurement awards
Inducement from suppliers or
contractors
Rules concerning description of goods…
Must not create obstacle to participation
Must be based on relevant objective technical
characteristics
9
Rules concerning description (cont.)
Reference to particular trade mark not
required unless there is no other way of
describing it
If trade mark is used the “or equivalent is
used
Standard feature & requirements used
10
Language- shall be specified
Methods of procurement
Tendering proceedings
Two stage tendering
Request for proposals
Competitive negotiation
Restricted tendering
11
Method of procurement (cont.)
Request for quotations
Single source procurement
Tendering proceedings
Solicitation of tenders or application to
prequalify
Invitation to be published in an official
gazette
12
Solicitation of tenders (cont.)
Published in a language used in
international trade & news paper of wide
international circulation……
Contents of invitation
• Name & address procuring entity
• Nature, location, quantity, place of delivery
• Time of completion
• Evaluation criteria
13
Contents of invitation (cont.)
• Declaration of participation regardless of
nationality or limited
• Means & place to obtain the document
• Price to purchase the document
• Language of the document
• Place & deadline for submission of
tenders
14
Contents of the documents (cont.)
• Instruction for preparing tenders
• Qualification criteria & procedures
• Requirement for documentary evidence
• Nature & required technical & quality
characteristics (spec.,drawing,designs…
• Criteria to select successful tendrer
• Condition of contract & form
15
• Alternative tenders if any
• Permission to submit tender for a
portion if permitted
• Formulation of tender price (transport,
insurance, duties & taxes
• Currency
• Language
16
• Requirement of security (bond)
• Modification or withdrawal
• Manner, place & deadline for submission
• Means of seeking clarification, meeting..
• Period tenders shall be in effect
• Place , date & time for the opening
• Procedures for opening & examining
17
Currency to be used for evaluation
Reference to the law
Name, title address of officers responsible
Any commitment to be made by the
contractor or supplier (transfer of tech.)
Right to review an unlawful act
The right to reject all tenders
18
• Formalities required once tender has
been accepted
• Any other requirements established by
the procuring entity in conformity with
the law
19
Clarification & modifications
• Supplier or contractor may request clarif.
• Procuring entity shall respond within
reasonable time
• The response shall be to all
• Procuring entity may issue addendum
• Minutes of meetings if any shall be
prepared by the procuring entity
20
Submission of tenders
Language as specified
Place , date & time
Clarification, modification or meeting prior
to deadline before submission
Extend deadline if necessary
Notice of extension shall given to all
Tender shall be submitted in writing,signed
21
Submission of tenders (cont.)
Tender may be submitted in any other form
specified in the document
Receipt showing date & time tender
received
Tender received after deadline shall not be
opened
Tender validity as specified
22
Submission of tenders (cont.)
Contractors may be requested to extend
bid validity
They may refuse to extend
Unless otherwise stipulated a contractor
may modify withdraw its tender
Tender security & form as specified
23
Submission of tender (cont.)
Tender security shall be returned
• Expiry of tender security
• Signing of contract
• Termination of tender
• Withdrawal of tender prior to deadline
24
Evaluation of tenders
Opening of tender
Tenders shall be opened at the time specif.
All who submitted shall be allowed to be
present
Name and tender price shall be announced
25
Examination, evaluation
Contractors may be asked clarification
to assist evaluation
No change in matter of substance
Correction of arithmetic errors
Minor deviations which do not affect
the substance of the tender
26
Tenders shall not be accepted if
• Not qualified
• Tenderer does not accept arithmetic
error
• Not responsive
• Tenderer give gratuity in any form or
any service or value as an inducement
27
The successful tender shall be
• Lowest tender price, subject to any
margin of preference
• Lowest evaluated tender based on
criteria specified in the tender document
28
Determining lowest evaluated tender
• Tender price, subject to any margin of
reference
• Cost of operating, maintaining & repair
• Time delivery, completion time
• Terms of payment, guaranties
• Foreign exchange, extent of local
content
29
Determining lowest evaluated tender
(cont.)
• Encouragement of employment
• Transfer of technology
• National defense & security
considerations
Tender prices shall be converted to same
Information on examination shall not be
disclosed
30
Prohibition of negotiation
No negotiation shall take place on the tender
Acceptance of tender
• Notice of acceptance
• Sign the procurement contract
• Approval by higher authority if required
• The contractor accepted fails to sign or fails to
provide performance selection will be made
from the remaining
31
Alternative methods of procurement
Two-stage tendering
• Provisions of open tendering shall apply
• Initial tenders without price (technical or
quality)
• 2nd stage- final tender with prices
• The originally set technical or quality
requirements may be modified
• Contractors shall be informed in the invitation
for the final tender
32
Restricted tendering
From all suppliers or contractors
Select in a none discriminatory manner
Sufficient number of Suppliers or
contractors to ensure effective competition
Notice restricted tendering to published
Provisions of open tendering except
qualification shall apply
33
Request for proposals
Addressed to several suppliers, at least 3
Publish in a notice seeking expression of
interest to submit proposal
Establish evaluation criteria
34
Request for proposals (cont.)
The criteria shall concern
• Managerial & technical competence
• Effectiveness of the proposal in the
requirement
• Price, cost of operation & maintenance
35
Competitive Negotiation
With sufficient number of suppliers or
contractors to ensure effective completion
Information to be supplied on an equal
basis
Negotiation to be confidential
Request best & final offer after completion
of negotiation
36
Request for quotations
As many suppliers or contractors as
possible, at least 3
Only one price quotation from each
No negotiation on the submitted quotations
The lowest price quotation meeting the
needs
37
Single-source procurement
38
Review
Supplier or contractor may seek review
The following shall not be subject to review
• Selection of method of procurement
• Choice of selection procedure
• Limitation of procurement on the basis of
nationality
• Rejection of all tenders, proposals….
• Refusal to respond to an expression of interest
39
Review by procuring entity
• Complaint to be submitted in writing to
head of procuring entity
• If the procedure was approved by an
authority to head of the authority
• Complaint to be submitted within20 days
• After contract has entered into force
complaint shall not be entertained
• Decision shall be made within 30 days
40
Review by procuring entity (cont.)
The decision shall
• State the reasons
• Indicate corrective measures
If decision is not made by the procuring entity or
approving authority the contractor or supplier is
entitled to administrative review
The decision shall final unless proceedings are
instituted under art.54 or 57
41
Administrative review
Contractor or supplier may submit
complaint to an administrative body if
• Head of procuring entity does not entertain
because the contract has entered into force
• After the expiry of the 30 days
• If contractor or supplier claims to be adversely
affected provided the complaint is submitted
within 20 days of issuance of the decision
42
Administrative review (cont.)
After receiving complaint the administrative
body shall give notice to the procuring
entity …
The administrative body may recommend
• Declare legal rules
• Prohibit the procuring enmity
• Require the procuring entity to act in lawfull
manner
43
The administrative body may recommend
• Annul in whole or in part an unlawful act
• Revise an unlawful act or decision
• Require the payment of compensation for
– Any reasonable costs incurred by the contractor or ..
– Loss or injury suffered by the contractor or supplier
• Order that the procurement proceedings be
terminated
• Issue a decision within 30 days
• The decision shall be final unless action art.57
44
Rules of review proceedings
• The complaint shall be notified to all suppliers
or contractors who participated
• Any such supplier or contractor or gov. body
whose interest will affected has the right to
participate in the review
• A copy of the decision shall furnished within 5
days after issuance to the contractor submitt..
• The decision shall be made available to public
45
Suspension of procurement proceedings
• Submission of complaint suspends the
procurement proceeding for 7 days
• Timely submission of complaint shall suspend
the performance of a contract which is enforce
• Head of procuring entity or approving authority
may extend the suspension provided total
suspension shall not exceed 30 days
• Suspension shall not apply if it is urgent
46
Judicial review
The court will have jurisdiction
• over the decisions made by review bodies or
• Of the failure of those bodies to make decision
within the prescribed time limit
47
Two-stage, Request for proposals,
Negotiation( conditions for use)
Not feasible to formulate detailed
specification
• Seek tenders as to various possible means
• Due technical character it is necessary to
negotiate
for the purpose of research, experiment,
study
Related to national defense or security
48
Two-stage ….(cont.)
Tender has been engaged
– no tenders were submitted or all tenders
were rejected
– Engaging to new tender would be unlikely
to result in a contract
By means competitive negotiation also
• There is urgent need & tendering is impractical
• Due catastrophic event, there is urgent need
49
Restricted tendering (conditions for use
Due to specialized nature, are available
only from limited suppliers or contractors
Time and cost required to examine &
evaluate a large number of tenders would
be disproportionate to the value of contract
50
Request for proposals (conditions for use)
Readily available goods, services that are
specially produced & for there an
established market
Amount shall be less than specified in
regulations
A procuring entity shall not divide the
procurement into separate contracts
51
Single-source procurement
Are available only from one supplier….
There is an urgent need
Owing to catastrophic event, there is an
urgent need
Additional to an existing contract
Contracts of research, experiment, study…
Related national defense or security
52

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Procurement Law (International)

UNCITRAL Model Law on procurement

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