Public Procurement Act 2007 PDF
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This is a document detailing the Public Procurement Act of 2007 from Nigeria. It outlines the establishment of the National Council on Public Procurement and the Bureau of Public Procurement, along with the objectives, functions, and related provisions. The document focuses on public procurement policies and regulations.
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Public Procurement Act 2007 No. 14 A 203 Extraordinary Federal Republic of Nigeria Official Gazette No. 65 Lagos—19th June, 2007 Vol. 94 Government Notice No. 44 The...
Public Procurement Act 2007 No. 14 A 203 Extraordinary Federal Republic of Nigeria Official Gazette No. 65 Lagos—19th June, 2007 Vol. 94 Government Notice No. 44 The following is published as Supplement to this Gazette : Act No. Short Title Page 14 Public Procurement Act, 2007.......... A 205-249 Printed and Published by The Federal Government Printer, Lagos, Nigeria. FGP 107/72007/1,000 (OL 73) Annual Subscription from 1st January, 2007 is Local : N15,000.00 Overseas : N21,500.00 [Surface Mail] N24,500.00 [Second Class Air Mail]. Present issue N1,500.00 per copy. Subscribers who wish to obtain Gazette after 1st January should apply to the Federal Government Printer, Lagos for amended Subscriptions. A 204 2007 No. 14 Public Procurement Act Public Procurement Act 2007 No. 14 A 205 PUBLIC PROCUREMENT ACT, 2007 ARRANGEMENT OF SECTIONS SECTION : PART I — ESTABLISHMENT OF NATIONAL COUNCIL ON PUBLIC PROCUREMENT 1. Establishment of the National Council on Public Procurement and its membership. 2. Functions of the Council. PART II — ESTABLISHMENT OF THE BUREAU OF PUBLIC PROCUREMENT 3. The establishment of the Bureau of Public Procurement. 4. Objectives of the Bureau. 5. Functions of the Bureau. 6. Powers of the Bureau. 7. Director-General and staff of the Bureau. 8. Principal officers of the Bureau. 9. Other staff of the Bureau. 10. Staff regulations. 11. Pension provisions. 12. Funds of the Bureau. 13. Financial year, budgeting and annual report. 14. Legal proceedings, PART III — SCOPE OF APPLICATION 15. Scope of application. PART IV — FUNDAMENTAL PRINCIPLES FOR PROCUREMENTS 16. Fundamental Principles for Procurement. PART V — ORGANISATION OF PROCUREMENTS 17. Approving authority. 18. Procurement planning. 19. Procurement implementation. 20. Accounting officer. 21. Procurement planning committee. 22. Tenders board. 23. Pre-qualification of bidders. 24. Open competitive bidding. A 206 2007 No. 14 Public Procurement Act PART VI — PROCUREMENT METHODS (GOODS AND SERVICES) 25. Invitations to bid. 26. Bid security. 27. Submission of bids. 28. Rejection of bids. 29. Validity period of bids, modification and withdrawal of tenders. 30. Bid opening. 31. Examination of bids. 32. Evaluation of bids. 33. Acceptance of bids. 34. Domestic preferences. 35. Mobilization fees. 36. Contract performance guarantee. 37. Interest on delayed payments. 38. Record of procurement proceedings. PART VII — SPECIAL AND RESTRICTED METHODS OF PROCUREMENT 39. Two stage tendering. 40. Restricted tendering. 41. Request for quotations. 42. Direct procurement. 43. Emergency procurement. PART VIII — PROCUREMENT OF CONSULTANT (SERVICES) 44. Expressions of interest to provide services for ascertained needs. 45. Request for proposals to provide services for unascertained needs. 46. Content of the requests for proposals. 47. Clarification and modification of requests for proposals. 48. Submission of proposals. 49. Criteria for evaluation of proposals. 50. General selection procedure (services). 51. Procedure for selection of proposal where price is a factor. 52. Selection procedure where price is not a factor. PART IX — PROCUREMENT SURVEILLANCE AND REVIEW 53. Bureau to recommend investigation. 54. Administrative Review. PART X — DISPOSAL OF PUBLIC PROPERTY 55. Disposal of public property. 56. Planning of disposals. Public Procurement Act 2007 No. 14 A 207 PART XI — CODE OF CONDUCT 57. Code of conduct for public procurement. PART XII — OFFENCES 58. Offences relating to public procurement. PART XIII — MISCELLANEOUS 59. Miscellaneous. 60. Interpretation. 61. Short title. A 208 2007 No. 14 Public Procurement Act Public Procurement Act 2007 No. 14 A 209 PUBLIC PROCUREMENT ACT, 2007 2007 ACT No. 14 AN ACT TOESTABLISH THE NATIONAL COUNCIL ON PUBLIC PROCUREMENT AND THE BUREAU OF PUBLIC PROCUREMENT AS THE REGULATORY AUTHORITIES RESPONSIBLE FOR THE MONITORING AND OVERSIGHT OF PUBLIC PROCUREMENT, HARMONIZING THE EXISTING GOVERNMENT POLICIES AND PRACTICES BY REGULATING, SETTING STANDARDS AND DEVELOPING THE LEGAL FRAMEWORK AND PROFESSIONAL CAPACITY FOR PUBLIC PROCUREMENT IN NIGERIA ; AND FOR RELATED MATTERS. Commence- ment. [4th Day of June, 2007] ENACTED by the National Assembly of the Federal Republic of Nigeria ; PART I – ESTABLISHMENT OF NATIONAL COUNCIL ON PUBLIC PROCUREMENT Establishment of the 1.—(1) There is established the National Council on Public Procurement National (in this Act referred to as “the Council”). Council on Public (2) The Council shall consist of : Procurement and its (a) the Minister of Finance as Chairman ; membership. (b) the Attorney-General and Minister of Justice of the Federation ; (c) the Secretary to the Government of the Federation ; (d) the Head of Service of the Federation ; (e) the Economic Adviser to the President ; (f ) six part-time members to represent ; (i) Nigeria Institute of Purchasing and Supply Management ; (ii) Nigeria Bar Association ; (iii) Nigeria Association of Chambers of Commerce, Industry, Mines and Agriculture ; (iv) Nigeria Society of Engineers ; (v) Civil Society ; (vi) the Media ; and (g) the Director-General of the Bureau who shall be the Secretary of the Council. (3) Notwithstanding the provisions of Section (2), the Council may co-opt any person to attend its meeting but the person so co-opted shall not have a casting vote or be counted towards quorum. (4) The Chairman and other members of the Council shall be appointed by the President. A 210 2007 No. 14 Public Procurement Act (5) Subject to sub-section (2) of this Section, a member of the Council being : (a) the holder of an elective office under the Constitution of Nigeria, shall hold office for a period he remains so elected and no more ; and (b) the Director-General of the Bureau, shall hold office on such terms and conditions as may be specified in his letter of appointment. Functions of 2. The Council shall : the Council. (a) consider, approve and amend the monetary and prior review thresholds for the application of the provisions of this Act by procuring entities ; (b) consider and approve policies on public procurement ; (c) approve the appointment of the Directors of the Bureau ; (d) receive and consider, for approval, the audited accounts of the Bureau of Public Procurement ; and (e) “approve changes in the procurement process to adapt to improvements in modern technology” ; (f ) give such other directives and perform such other functions as may be necessary to achieve the objectives of this Act. PART II—ESTABLISHMENT OF THE BUREAU OF PUBLIC PROCUREMENT The 3.—(1) There is established an agency to be known as the Bureau of establishment Public Procurement in this Act referred to as “the Bureau”. of the Bureau of (2) The Bureau : Public (a) shall be a body corporate with perpetual succession and a common seal ; Procurement. (b) may sue and be sued in its corporate name ; and (c) may acquire, hold or dispose of any property, movable or immovable for the purpose of carrying out any of its functions under this Act. Objectives of 4. The objectives of the Bureau are : the Bureau. (a) the harmonization of existing government policies and practices on public procurement and ensuring probity, accountability and transparency in the procurement process ; (b) the establishment of pricing standards and benchmarks ; (c) ensuring the application of fair, competitive, transparent, matneney standards and practices for the procurement and disposal of public assets and services ; and (d) the attainment of transparency, competitiveness, cost effectiveness and professionalism in the public sector procurement system. Functions of 5. The Bureau shall : the Bureau. (a) formulate the general policies and guidelines relating to public sector procurement for the approval of the Council ; (b) publicize and explain the provisions of this Act ; Public Procurement Act 2007 No. 14 A 211 (c) subject to thresholds as may be set by the Council, certify Federal procurement prior to the award of contract ; (d) supervise the implementation of established procurement policies ; (e) monitor the prices of tendered items and keep a national database of standard prices ; (f ) publish the details of major contracts in the procurement journal ; (g) publish paper and electronic editions of the procurement journal and maintain an archival system for the procurement journal ; (h) maintain a national database of the particulars and classification and categorization of federal contractors and service providers ; (i) collate and maintain in an archival system, all federal procurement plans and information ; (j) undertake procurement research and surveys ; (k) organize training and development programmes for procurement professionals ; (l) periodically review the socioeconomic effect of the policies on procurement and advise the Council accordingly ; (m) prepare and update standard bidding and contract documents ; (n) prevent fraudulent and unfair procurement and where necessary apply administrative sanctions ; (o) review the procurement and award of contract procedures of every entity to which this Act applies ; (p) perform procurement audits and submit such report to the National Assembly bi-annually ; (q) introduce, develop, update and maintain related database and technology ; (r) establish a single internet portal that shall, subject to Section 16 (21) to this Act serve as a primary and definitive source of all information on government procurement containing and displaying all public sector procurement information at all times ; and (s) co-ordinate relevant training programs to build institutional capacity. 6.—(1) The Bureau shall have the power to : Powers of the Bureau. (a) enforce the monetary and prior review thresholds set by the Council for the application of the provisions of this Act by the procuring entities ; (b) subject to the paragraph (a) of this sub-section, issue certificate of “No Objection” for Contract Award” within the prior review threshold for all procurements within the purview of this Act ; (c) from time to time stipulate to all procuring entities, the procedures and documentation pre-requisite for the issuance of Certificate of ‘No Objection’ under this Act ; (d) where a reason exist : A 212 2007 No. 14 Public Procurement Act (i) cause to be inspected or reviewed any procurement transaction to ensure compliance with the provisions of this Act, (ii) review and determine whether any procuring entity has violated any provision of this Act ; (e) debar any supplier, contractor or service provider that contravenes any provision of this Act and regulations made pursuant to this Act ; (f ) maintain a national database of federal contractors and service providers and to the exclusion of all procuring entities prescribe classifications and categorizations for the companies on the register ; (g) maintain a list of firms and persons that have been debarred from participating in public procurement activity and publish them in the procurement journal ; (h) call for such information, documents, records and reports in respect of any aspect of any procurement proceeding where a breach, wrongdoing, default, mismanagement and or collusion has been alleged, reported or proved against a procuring entity or service provider ; (i) recommend to the Council, where there are persistent or serious breaches of this Act or regulations or guidelines made under this Act for : (i) the suspension of officers concerned with the procurement or disposal proceeding in issue ; (ii) the replacement of the head or any of the members of the procuring or disposal unit of any entity or the Chairperson of the Tenders Board as the case may be ; (iii) the discipline of the Accounting Officer of any procuring entity ; (iv) the temporary transfer of the procuring and disposal function of a procuring and disposing entity to a third party procurement agency or consultant ; or (v) any other sanction that the Bureau may consider appropriate ; (j) call for the production of books of accounts, plans, documents, and examine persons or parties in connection with any procurement proceeding ; (k) act upon complaints in accordance with the procedures set out in this Act ; (l) nullify the whole or any part of any procurement proceeding or award which is in contravention of this Act ; (m) do such other things as are necessary for the efficient performance of its functions under this Act. (2) The Bureau shall serve as the Secretariat for the Council. (3) The Bureau shall, subject to the approval of the Council, have power to : (a) enter into contract or partnership with any company, firm or person which in its opinion will facilitate the discharge of its functions ; (b) request for and obtain from any procurement entity information including Public Procurement Act 2007 No. 14 A 213 reports, memoranda and audited accounts, and other information relevant to its functions under this Act ; and (c) liaise with relevant bodies or institutions national and international for effective performance of its functions under this Act. 7.—(1) There shall be for the Bureau, a Director-General who shall be appointed Director- by the President, on the recommendation of the Council after competitive selections. General and staff of the (2) The Director-General shall be : Bureau. (a) the Chief Executive and accounting officer of the Bureau ; (b) responsible for the execution of the policy and day to day administration of the affairs of the Bureau ; and (c) a person who possesses the relevant and adequate professional qualification and shall have been so qualified for a period of not less than 15 years. (3) The Director-General shall hold office : (a) for a term of 4 years in the first instance and may be re-appointed for a further term of 4 years and no more ; and (b) on such terms and conditions as may be specified in his letter of appointment. (4) Without prejudice to the provisions of this Act, the Director-General of the Bureau may be removed from office at the instance of the President on the basis of gross misconduct of financial impropriety, fraud, and manifested incompetence proven by the Council. 8.—(1) The Council shall appoint the principal officers for the Bureau after Principal competitive selection process. officers of the Bureau. (2) The principal officers appointed under Section 9(1) of this Section shall each have the requisite qualification and experience required for the effective performance of the functions of their respective Departments and the Bureau as specified under this Act. (3) The Council shall have power to modify the operational structure of the Bureau as may be necessary to enhance the Bureau’s duties and functions under this Act. 9.—(1) The Council may appoint such officers and other employees as Other staff may, from time to time, deem necessary for the purposes of the Bureau. of the Bureau. (2) Subject to the Pension Reform Act, the terms and conditions of service (including remuneration, allowances, benefits and pensions) of officers and employees of the Bureau shall be as determined by the Council. (3) Without prejudice to the generality of sub-section of this Section, the Council shall have power to appoint either on transfer or on secondment from any public service in the Federation, such number of employees as may, be required to assist the Bureau in the discharge of any of its functions under the Act and persons so employed, shall be remunerated (including allowances) as the Council may consider appropriate. A 214 2007 No. 14 Public Procurement Act Staff 10.—(1) The Council may, subject to the provisions of this Act and within Regulations. six months of the inauguration, make staff regulations relating generally to the conditions of service of the employees of the Bureau and without prejudice to the foregoing, such regulations may provide for : (a) the appointment, promotion and disciplinary control (including dismissal) of employees of the Bureau ; and (b) appeals by such employees against dismissal or other disciplinary measures. (2) Until such regulations are made, any instrument relating to the conditions of service of officers in the civil service of the Federation shall be applicable. Pension 11. Employees of the Bureau shall be entitled to pensions, and other retirement provisions. benefits as prescribed under the Pension Act. Funds of the 12.—(1) The Bureau shall establish and maintain a Fund, to be approved by Bureau. the Council into which shall be paid and credited : (a) the sums appropriated by the National Assembly for the running of the Bureau ; (b) all subventions, fees and charges for services rendered or publications made by the Bureau ; and (c) all other assets which may, from time to time, accrue to the Bureau. (2) The Bureau shall charge its fund to meet all its expenditure. (3) The Council may make regulations for the Bureau : (a) specifying the manner in which assets or the fund of the Bureau are to be held, and regulating the making of payment into and out of the fund ; and (b) requiring the keeping of proper accounts and records for the purposes of the fund in such form as may be specified in the rules. (4) The Bureau may, from time to time, apply the proceeds of the fund for : (a) the cost of administration of the Bureau ; (b) the payments of salaries, fees and other remuneration, employees of the Bureau or experts or professionals appointed by the Bureau ; (c) the maintenance of any property acquired by or vested in the Bureau; and (d) any matter connected with all or any of the functions of the Bureau under this Act. (e) the payments of salaries, fees and other remuneration, of employees of the Bureau or experts or professionals appointed by the Bureau ; and (f) any expenditure connected with all or any of the functions of the Bureau under this Act. Financial 13.—(1) The financial year of the Bureau shall be the same as that of the year, Federal Government. budgeting and annual report. Public Procurement Act 2007 No. 14 A 215 (2) Not later than 6 months before the end of the financial year, the Bureau shall submit to the Council an estimate of its expenditure and projected income during the next succeeding year. (3) The Bureau shall keep proper accounts and records of its receipts, payments, assets and liabilities and shall in respect of each financial year prepare a statement of account in such form as the Council may direct. (4) The Bureau shall within 6 months after the end of the financial year to which the accounts relate cause the accounts to be audited in accordance with guidelines supplied by the Auditor-General of the Federation. (5) The Bureau shall at the end of each financial year, prepare and submit to the Council a report in such form as shall accurately capture all the activities of the Bureau during the preceding year and shall include in the report a copy of the audited accounts of the Bureau for that year. 14.—(1) Subject to the provisions of this Act, no suit shall be commenced Legal against the Bureau before the expiration of 30 days after written notice of an intention proceedings. to commence the suit shall have been served upon the Bureau by the intending plaintiff or his agent; and the notice shall clearly and explicitly state : (a) the cause of action ; (b) the particulars of the claim ; (c) the name and address of legal practitioner of the intending plaintiff ; and (d) the relief being sought. (2) The Director-General of the Bureau, its officers, employees or agents shall not personally be subject to any action, claim or demand by, or liable to any person in respect of anything done or omitted to be done in exercise of any functions or power conferred by this Act upon the Bureau, its Director-General, officers, employees or agents. (3) A member of the Bureau or the Director-General or any officer or employee of the Bureau shall be indemnified out of the assets of the Bureau against any liability incurred by him in defending any proceeding, whether civil or criminal, if the proceeding is brought against him in his capacity as a member, Director-General, officer or other employee of the Bureau. (4) A notice, summons or other documents required or authorized to be served upon the Bureau under the provisions of this Act or any other law or enactment may be served by delivering it to the Director-General or by sending it by registered post and addresses to the Director-General at the principal office of the Bureau. PART III—SCOPE OF APPLICATION 15.—(1) The provisions of this Act shall apply to all procurement of goods, Scope of works and services carried out by : application. (a) the Federal Government of Nigeria and all procurement entities ; A 216 2007 No. 14 Public Procurement Act (b) all entities outside the foregoing description which derive at least 35% of the funds appropriated or proposed to be appropriated for any type of procurement described in this Act from the Federation share of Consolidated Revenue Fund. (2) The provisions of this Act shall not apply to the procurement of special goods, works and services involving national defence or national security unless the President’s express approval has been first sought and obtained. PART IV—FUNDAMENTAL PRINCIPLES FOR PROCUREMENTS Fundamental 16.—(1) Subject to any exemption allowed by this Act, all public procurement principles shall be conducted : for procure- ment. (a) subject to the prior review thresholds as may from time to time be set by the Bureau pursuant to Section 7(1)(a)-(b) ; (b) based only on procurement plans supported by prior budgetary appropriations and no procurement proceedings shall be formalized until the procuring entity has ensured that funds are available to meet the obligations and subject to the threshold in the regulations made by the Bureau, has obtained a “Certificate of ‘No Objection’ to Contract Award” from the Bureau; (c) by open competitive bidding ; (d) in a manner which is transparent, timely, equitable for ensuring accountability and conformity with this Act and regulations deriving therefrom ; (e) with the aim of achieving value for money and fitness for purpose ; (f ) in a manner which promotes competition, economy and efficiency ; and (g) in accordance with the procedures and timeline laid down in this Act and as may be specified by the Bureau from time to time. (2) Where the Bureau has set prior review thresholds in the procurement regulations, no funds shall be disbursed from the Treasury or Federation Account or any bank account of any procuring entity for any procurement falling above the set thresholds unless the cheque, payments or other form of request for payments is accompanied by a certificate of “No Objection” to an award of contract duly issued by the Bureau. (3) For all cases where the Bureau shall set a prior review threshold, the Bureau shall prescribe by regulation, guidelines and the conditions precedent to the award of Certificate of “No Objection” under this Act. (4) Subject to the prior review thresholds as may be set by the Bureau, any procurement purported to be awarded without a “Certificate of ‘No Objection’ to Contract Award” duly issued by the Bureau shall be null and void. (5) A supplier, contractor or service provider may be a natural person, a legal person or a combination of the two. Suppliers, contractors or service providers acting jointly are jointly and severally liable for all obligations and or responsibility arising from this Act and the non-performance or improper performance of any contract awarded pursuant to this Act. Public Procurement Act 2007 No. 14 A 217 (6) All bidders in addition to requirements contained in any solicitation documents shall : (a) possess the necessary : (i) professional and technical qualifications to carry out particular procurements ; (ii) financial capability ; (iii) equipment and other relevant infrastructure ; (iv) shall have adequate personnel to perform the obligations of the procurement contracts ; (b) possess the legal capacity to enter into the procurement contract ; (c) not be in receivership, the subject of any form of insolvency or bankruptcy proceedings or the subject of any form of winding up petition or proceedings ; (d) have fulfilled all its obligations to pay taxes, pensions and social security contributions ; (e) not have any director who has been convicted in any country for any criminal offence relating to fraud or financial impropriety or criminal misrepresentation or falsification of facts relating to any matter ; (f ) accompany every bid with an affidavit disclosing whether or not any officer of the relevant committees of the procurement entity or Bureau is a former or present director, shareholder or has any pecuniary interest in the bidder and confirm that all information presented in its bid are true and correct in all particulars. (7) The procuring entity may require a bidder to provide documentary evidence or other information it considers necessary as proof that the bidder is qualified in accordance with this Act and the solicitation documents and for this purpose any such requirements shall apply equally to all bidders. (8) Whenever it is established by a procuring entity or the Bureau that any or a combination of the situations set out exist, a bidder may have its bid or tender excluded from any particular procurement proceeding if : (a) there is verifiable evidence that any supplier, contractor or consultant has given or promised a gift of money or any tangible item, or has promised, offered or given employment or any other benefit, item or a service that can be quantified in monetary terms to a current or former employee of a procuring entity or the Bureau, in an attempt to influence any action, or decision making of any procurement activity ; (b) a supplier, contractor or consultant during the last three years prior to the commencement of the procurement proceedings in issue, failed to perform or to provide due care in performance of any public procurement ; (c) the bidder is in receivership or is the subject of any type of insolvency proceedings or if being a private company under the Companies and Allied Matters Act, is controlled by a person or persons who are subject to any bankruptcy proceedings or who have been declared bankrupt and or have made any compromises with the creditors within two calendar years prior to the initiation of the procurement proceeding ; A 218 2007 No. 14 Public Procurement Act (d) the bidder is in arrears regarding payment of due taxes, charges, pensions or social insurance contributions, unless such bidders have obtained a lawful permit with respect to allowance, deference of such outstanding payments or payment thereof in installments ; (e) the bidder has been validly sentenced for a crime committed in connection with a procurement proceeding, or any other crime committed to gain financial profit ; (f ) the bidder has in its management or is in any portion owned by any person that has been validly sentence for a crime committed in connection with a procurement proceeding, or other crime committed to gain financial profit ; and (g) the bidder fails to submit a statement regarding its dominating or subsidiary relationships with respect to other parties to the proceedings and persons acting on behalf of the procuring entity participating in same proceeding or whom remains in subordinate relationship with other participants to the proceedings. (9) In such cases the procuring entity shall inform the Bureau and person referred to in subsection (8)(a)-(g) of this Section, in writing that the bid or tender in question has been excluded and the grounds for the exclusion and to keep a record of same in the file pertaining to the public procurement proceeding in question. (10) All communications and documents issued by procuring entities and the Bureau shall be in English Language. (11) All communications regarding any matter deriving from this Act or proceedings of public procurement shall be in writing or such other form as may be stipulated by the Bureau. (12) Every procuring entity shall maintain both file and electronic records of all procurement proceedings made within each financial year and the procurement records shall be maintained for a period often years from the date of the award. (13) Copies of all procurement records shall be transmitted to the Bureau not later than 3 months after the end of the financial year and shall show : (a) information identifying the procuring entity and the contractors ; (b) the date of the contract award ; (c) the value of the contract ; and (d) the detailed records of the procurement proceedings. (14) All unclassified procurement records shall be open to inspection by the public at the cost of copying and certifying the documents plus an administrative charge as may be prescribed from time to time by the Bureau. (15) The criteria stipulated as the basis upon which suppliers or contractors would be evaluated shall not be changed in the course of any procurement proceeding. (16) The burden of proving fulfillment of the requirements for participation in any procurement proceeding shall lie on the supplier or contractor. Public Procurement Act 2007 No. 14 A 219 (17) A contract shall be awarded to the lowest evaluated responsive bid from the bidders substantially responsive to the bid solicitation. (18) Notwithstanding subsection (16) of this Section, the Bureau may refuse to issue a “Certificate of ‘No Objection’ to Contract Award” on the grounds that the price is excessive. (19) Pursuant to subsection (17) of this Section, the Bureau may direct either that the procurement proceedings be entirely cancelled or that the procuring entity conduct a re-tender. (20) Pursuant to subsection (18) of this Section, the Bureau may either direct that the procurement proceedings be entirely cancel1ed or that the procuring entity conduct a re-tender. (21) The accounting officer of a procuring entity and any officer to whom responsibility is delegated are responsible and accountable for any actions taken or omitted to be taken either in compliance with or in contravention of this Act. (22) The accounting officer of a procuring entity has the responsibility to ensure that the provisions of this Act and the regulations laid down by the Bureau are complied with, and concurrent approval by any Tenders Board shall not absolve the accounting officer from accountability for anything done in contravention of this Act or the regulations laid down hereunder. (23) Procurement and disposal decisions of a procuring entity shall be taken in strict adherence to the provisions of this Act and any regulations as may from time to time be laid down by the Bureau. (24) Persons who have been engaged in preparing for a procurement or part of the proceedings thereof may neither bid for the procurement in question or any part thereof either as main contractor or sub-contractor nor may they co-operate in any manner with bidders in the course of preparing their tenders. (25) A procuring entity shall not request or stipulate that a bidder should engage a particular sub-contractor as a requirement for participating in any procurement proceedings. (26) All procurement contracts shall contain provisions for arbitral proceedings as the primary forms of dispute resolution. (27) The values in procurement documents shall be stated in Nigerian currency and where stated in a foreign currency shall be converted to Nigerian currency using the exchange rate of the Central Bank of Nigeria valid on the day of opening a tender or bid. (28) All procurement contracts shall contain warranties for durability of goods, exercise of requisite skills in service provision and use of genuine materials and inputs in execution. A 220 2007 No. 14 Public Procurement Act PART V — ORGANISATION OF PROCUREMENTS Approving 17. Subject to the monetary and prior review thresholds for procurements in authority. this Act as may from time to time be determined by the Council, the following shall be the approving authority for the conduct of public procurement : (a) in the case of : (i) a government agency, parastatal, or corporation, a Parastatals Tenders Board ; and (ii) a ministry or extra-ministerial entity, the Ministerial Tender Board. Procurement 18. Subject to regulations as may from time to time be made by the Bureau planning. under the direction of the Council, a procuring entity shall plan its procurement by : (a) preparing the needs assessment and evaluation ; (b) identifying the goods, works or services required ; (c) carrying appropriate market and statistical surveys and on that basis prepare an analysis of the cost implications of the proposed procurement ; (d) aggregating its requirements whenever possible, both within the procuring entity and between procuring entities, to obtain economy of scale and reduce procurement cost ; (e) integrating its procurement expenditure into its yearly budget ; (f) prescribing any method for effecting the procurement subject to the necessary approval under this Act ; and (g) ensuring that the procurement entity functions stipulated in this Section shall be carried out by the Procurement Planning Committee. Procurement 19. Subject to regulations as may from time to time be made by the Bureau implementa- under direction of Council, a procuring entity shall, in implementing its procurement tion. plans : (a) advertise and solicit for bids in adherence to this Act and guidelines as may be issued by the Bureau from time to time ; (b) to invite two credible persons as observers in every procurement process, one person each representing a recognized ; (i) private sector professional organisation whose expertise is relevant to the particular goods or service being procured, and (ii) non-governmental organisation working in transparency, accountability and anti-corruption areas, and the observers shall not intervene in the procurement process but shall have right to submit their observation report to any relevant agency or body including their own organisations or associations ; (c) receive, evaluate and make a selection of the bids received in adherence to this Act and guidelines as may be issued by the Bureau from time to time ; (d) obtain approval of the approving authority before making an award ; (e) debrief the bid losers on request ; Public Procurement Act 2007 No. 14 A 221 (f ) resolve complaints and disputes if any ; (g) obtain and confirm the validity of any performance guarantee ; (h) obtain a “Certificate of ‘No Objection’ to Contract Award” from the Bureau within the prior review threshold as stipulated in Section 3 (a) of this Act ; (i) execute all Contract Agreements ; and (j) Announce and publicize the award in the format stipulated by this Act and guidelines as may be issued by the Bureau from time to time. 20.—(1) The accounting officer of a procuring entity shall be the person charged Accounting with line supervision of the conduct of all procurement processes ; in the case of officer. ministries the Permanent Secretary and in the case of extra-ministerial departments and corporations the Director-General or officer of co-ordinate responsibility. (2) The accounting officer of every procuring entity shall have overall responsibility for the planning of, organization of tenders, evaluation of tenders and execution of all procurements and in particular shall be responsible for : (a) ensuring compliance with the provisions of this Act by his entity and liable in person for the breach or contravention of this Act or any regulation made hereunder whether or not the act or omission was carried out by him personally or any of his subordinates and it shall not be material that he had delegated any function duty or power to any person or group of persons ; (b) constituting the Procurement Committee and its decisions ; (c) ensuring that adequate appropriation is provided specifically for the procurement in the Federal budget ; (d) integrating his entity’s procurement expenditure into its yearly budget ; (e) ensuring that no reduction of values or splitting of procurements is carried out such as to evade the use of the appropriate procurement method ; (f ) constituting the Evaluation Committee ; (g) liaising with the Bureau to ensure the implementation of its regulations. 21.—(1) For each financial year each procuring entity shall establish a Procurement Procurement Planning Committee. planning committee. (2) The Procurement Planning Committee shall consist of : (a) the accounting officer of the procuring entity or his representative who shall chair the Committee ; (b) a representative of : (i) the procurement unit of the procuring entity who shall be the Secretary, (ii) the unit directly in requirement of the procurement, (iii) the financial unit of the procuring entity, (iv) the planning, research and statistics unit of the procuring entity, (v) technical personnel of the procuring entity with expertise in the subject matter for each particular procurement, and (vi) the legal unit of the procuring entity. A 222 2007 No. 14 Public Procurement Act Tenders 22.—(1) There is hereby established by this Act in each procuring entity a board. tenders board (in this Act referred to as “the Tenders Board”). (2) Subject to the approval of the Council, the Bureau shall, from time to time, prescribe guidelines for the membership of the Tenders Board. (3) The Tenders Board shall be responsible for the award of procurements of goods, works and services within the threshold set in the regulations. (4) In all cases where there is a need for pre-qualification, the Chairman of the Tenders Board shall constitute a technical evaluation sub-committee of the Tenders Board charged with the responsibility for the evaluation of bids which shall be made up of professional staff of the procuring entity and the Secretary of the Tenders Board who shall also be the Chair of the Evaluation Sub-committee. (5) The decision of the Tenders Board shall be communicated to the Minister for implementation. Prequalifica- 23.—(1) Where a procuring entity has made a decision with respect to the tion of minimum qualifications of suppliers, contractors or service providers by requesting bidders. interested persons to submit applications, to pre-qualify, it shall set out precise criteria upon which it seeks to give consideration to the applications and in reaching a decision as to which supplier, contractor or service provider qualifies, shall apply only the criteria set out in the prequalification documents and no more. (2) Procuring entities shall supply a set of prequalification documents to each supplier, contractor or consultant that request them, and the price that a procuring entity may charge for the prequalification documents shall reflect only the cost of printing and provision to suppliers or contractors and consultants. (3) The prequalification document shall include : (a) instructions to prepare and submit prequalification application ; (b) a summary of the main terms and conditions required for the procurement contract to be entered into as a result of the procurement proceedings ; (c) any documentary evidence or other information that must be submitted by suppliers, contractors or consultants to demonstrate their qualifications ; (d) the manner and place for the submission of applications to pre-qualify and the deadline for the submission. expressed as a specific date and time which allows sufficient time for suppliers, contractors or consultants to prepare and submit their applications, taking into account the reasonable need of the procuring entity ; and (e) any other requirement that may be established by the procuring entity in conformity with this Act and procurement regulations relating to the preparation and submission of applications to pre-qualify and to the prequalification proceedings. (4) The procurement entity shall respond to any request by a supplier, contractor or consultant for clarification of the prequalification documents if the request is made at least ten days before the deadline for the submission of applications to pre-qualify. Public Procurement Act 2007 No. 14 A 223 (5) The response by the procuring entity shall be given within a reasonable time and in any event within a period of at most seven working days so as to enable the supplier, contractor or consultant to make a timely submission of its application to pre-qualify. (6) The response to any request that might reasonably be expected to be of interest to other supplier, contractor or consultant shall, without identifying the source of the request, be communicated to other suppliers or contractors or consultants provided with the prequalification documents by the procuring entity. (7) A procuring entity shall promptly notify each supplier, contractor or consultant which submitted an application to pre-qualify of whether or not it has been pre-qualified and shall make available to any member of the general public upon request, the names of the suppliers, contractors or consultants who have been pre-qualified. (8) Suppliers, contractors or consultants who have been pre-qualified may participate further in the procurement proceedings. (9) The procuring entity shall upon request communicate to suppliers, contractors or consultants who have not been pre-qualified, the grounds for disqualification. (10) The procuring entity may require a supplier, contractor or service provider who has been pre-qualified to demonstrate its qualifications again in accordance with the same criteria used to pre-qualify the supplier, contractor or consultant. (11) The procuring entity shall promptly notify each supplier, contractor or service provider requested to demonstrate its qualifications again whether or not the supplier, contractor or consultant has done so to the satisfaction of the procuring entity. (12) The procuring entity shall disqualify any supplier, contractor or service provider who fails to demonstrate its qualification again if requested to do so. PART VI—PROCUREMENT METHODS (GOODS AND SERVICES) 24.—(1) Except as provided by this Act, all procurements of goods and works Open by all procuring entities shall be conducted by open competitive bidding. competitive bidding. (2) Any reference to open competitive bidding in this Act means the process by which a procuring entity based on previously defined criteria, effects public procurements by offering to every interested bidder, equal simultaneous information and opportunity to offer the goods and works needed. (3) The winning bid shall be that which is the lowest evaluated responsive bid which has been responsive to the bid with regards to work specification and standard. 25.—(1) Invitations to bid may be either by way of National Competitive Invitations to Bidding or International Competitive Bidding and the Bureau shall from time to time bid. set the monetary thresholds for which procurements shall fall under either system. A 224 2007 No. 14 Public Procurement Act (2) Every invitation to an open competitive bid shall : (i) in the case of goods and works under International Competitive Bidding, the invitation for bids shall be advertised in at least two national newspapers and one relevant internationally recognised publication, any official websites of the procuring entity and the Bureau as well as the procurement journal not less than six weeks before the deadline for submission of the bids for the goods and works, (ii) in the case of goods and works valued under National Competitive Bidding, the invitation for bids shall be advertised on the notice board of the procuring entity, any official web sites of the procuring entity, at least two national newspapers, and in the procurement journal not less than six weeks before the deadline for submission of the bids for the goods and works. Bid security. 26.—(1) Subject to the monetary and prior review thresholds as may from time to time be set by the Bureau all procurements valued in excess of the sums prescribed by the Bureau shall require a bid security in an amount not more than 2% of the bid price by way of a bank guarantee issued by a reputable bank acceptable to the procuring entity. (2) The Bureau shall from time to time specify the principal terms and conditions of the required bid security in the tender documents. (3) When the procuring entity requires suppliers or contractors submitting tenders to provide a bid security the requirement shall apply to each supplier or contractor. Submission 27.—(1) All bids in response to an invitation to open competitive bidding shall of bids. be submitted in writing and in addition to any other format stipulated in the tender documents, signed by an official authorized to bind the bidder to a contract and placed in a sealed envelop. (2) All submitted bids shall be deposited in a secured tamper-proof bid-box. (3) All bids submitted shall be in English language. (4) The procuring entity shall issue a receipt showing the date and time the bid was delivered. (5) Any bid received after the deadline for the submission of bids shall not be opened and must be returned to the supplier or contractor which submitted it. (6) No communication shall take place between procuring entities and any supplier or contractor after the publication of a bid solicitation other than as provided in this Act. Rejection of 28. A procuring entity may : bids. (a) reject all bids at any time prior to the acceptance of a bid, without incurring thereby any liability to the bidders ; and (b) cancel the procurement proceedings in the public interest, without incurring any liability to the bidders. Public Procurement Act 2007 No. 14 A 225 29.—(1) The period of validity for a bid shall be the period specified in the Validity tender documents. period of bids, (2) A procuring entity may request suppliers or contractors to extend the modification period of validity for an additional specified period of time. and withdrawal (3) A supplier or contractor may refuse the request for the extension of bid, in of tenders. which case the effectiveness of its bid will terminate upon the expiration of the un- extended period of effectiveness. (4) A supplier or contractor may modify or withdraw its bid prior to the deadline for the submission of bids. (5) The modification or notice of withdrawal is effective if it is received by the procurement entity before the deadline for the submission of tenders. 30. All bids shall be submitted before the deadline or date specified in the tender Bid opening. documents or any extension of the deadline for submission and the procuring entity shall : (a) permit attendees to examine the envelopes in which the bids have been submitted to ascertain that the bids have not been tampered with ; (b) cause all the bids to be opened in public, in the presence of the bidders or their representatives and any interested member of the public ; (c) ensure that the bid opening takes place immediately following the deadline stipulated for the submission of bids or any extension thereof ; (d) ensure that a register is taken of the names and addresses of all those present at the bid opening and the organizations they represent which is recorded by the Secretary of the tenders board ; and (e) call-over to the hearing of all present, the name and address of each bidder, the total amount of each bid, the bid currency and shall ensure that these details are recorded by the Secretary of the Tenders Board or his delegate in the minutes of the bid opening. 31.—(1) All bids shall be first examined to determine if they : Examination of bids. (a) meet the minimum eligibility requirements stipulated in the bidding documents ; (b) have been duly signed ; (c) are substantially responsive to the bidding documents ; and (d) are generally in order. (2) A procuring entity may ask a supplier or a contractor for clarification of its bid submission in order to assist in the examination, evaluation and comparison of bids. (3) The following shall not be sought, offered or permitted : (a) changes in prices ; (b) changes of substance in a bid ; and (c) changes to make an unresponsive bid responsive. A 226 2007 No. 14 Public Procurement Act (4) Notwithstanding sub-Section (3) of this Section, the procuring entity may correct purely arithmetical errors that are discovered during the examination of tenders. (5) The procuring entity shall give prompt notice of the correction to the supplier or contractor that submitted the tender. (6) A major deviation shall result in a rejection of bid while a minor deviation shall be subject to clarification. (7) The following shall be considered as major deviations : (a) with respect to clauses in an offer ; (i) unacceptable sub-contracting, (ii) unacceptable time schedule if time is of essence, (iii) unacceptable alternative design, and (iv) unacceptable price adjustment. (b) with respect to the status of the bidder ; (i) the fact that he is ineligible or not pre-qualified, and (ii) the fact that he is uninvited, (c) with respect to bid documents an unsigned bid ; (d) with respect to time, date and location for submission ; (i) any bid received after the date and time for submission stipulated in the solicitation document, (ii) any bid submitted at the wrong location. (8) In cases of major deviations, bids shall not be considered any further and, where unopened, shall be returned as such to the bidder. (9) In all cases of rejection, a letter stipulating the reasons for rejection shall be sent, and the bidder shall not be permitted to amend his bid to become compliant. (10) Subject to any provision to the contrary, the following shall be considered as minor deviations : (a) the use of codes ; (b) the difference in standards ; (c) the difference in materials ; (d) alternative design ; (e) alternative workmanship ; (f ) modified liquidated damages ; (g) omission in minor items ; (h) discovery of arithmetical errors ; (i) sub-contracting that is unclear and questionable ; (j) different methods of construction ; Public Procurement Act 2007 No. 14 A 227 (k) difference in final delivery date ; (l) difference in delivery schedule ; (m) completion period where these are not of essence ; (n) non-compliance with some technical local regulation ; (o) payment terms ; and (p) any other condition that has little impact on the bid. (11) In cases not mentioned above and where there exists a doubt as to whether a particular condition in a bid is a major or a minor deviation, the following rules shall apply : (a) where the impact on the costs is major, it shall be regarded as a major deviation ; and (b) where the impact on the costs is minor, it shall be regarded as a minor deviation. (12) In cases of minor deviations, written clarification may be obtained from the supplier or contractor and, where applicable, an offer made for the correction of the minor deviation. (13) Where a supplier or contractor does not accept the correction of a minor deviation, his bid shall be rejected. (14) At the stage of evaluation and comparison, all minor deviations shall be quantified in monetary terms. (15) For the rejection of a bid, a written notice shall be given promptly to the supplier. 32.—(1) For the evaluation and comparison of bids that have been adjudged Evaluation of as valid for the purposes of evaluation, no other method or criteria shall be used bids. except those stipulated in the solicitation documents. (2) The objective of bid evaluation shall be to determine and select the lowest evaluated responsive bid from bidders that have responded to the bid solicitation. (3) In the course of its determination of the lowest evaluated responsive bid from the bidders that have responded to the bid solicitation the Tenders Board shall, in particular, undertake the following processes as applicable : (a) checking of deviations ; (b) checking of omissions with quantification of same ; (c) application of discounts, as applicable ; (d) clarification with bidders of questionable minor deviations ; (e) quantification in monetary terms of such questionable deviations ; (f ) conversion to common currency ; (g) calculation and tabulation of bid amount with domestic preference where applicable ; (h) determination of the lowest calculated prices in order of rank ; A 228 2007 No. 14 Public Procurement Act (i) post-qualification of bidders, where applicable ; (j) listing of rejection of bids, where applicable ; (k) decision of rejection of all bids where justifiable ; (l) recommendation for award ; and (m) writing up of the bid evaluation report. (4) All relevant factors, in addition to price, that will be considered for the purposes of bid evaluation and the manner in which such factors will be applied shall be stipulated in the solicitation documents. (5) Such factors shall be calculated in monetary terms as stipulated in the solicitation documents and shall include : (a) for goods, among others, costs of transportation and insurance, payment schedule, delivery time, operating costs, efficiency, compatibility of the equipment, availability of services and spare parts, related training, safety, environmental benefits or losses by damages ; (b) for works, in addition to factors stipulated in Section 34(1) of this Act, and subject to Section 34(2) of this Act, if time is a critical factor, the value of early completion ; and (c) the value of early completion under Section 35(2) of this Act shall not be taken into account unless, in conformity with criteria pre-set in the bidding documents, the conditions of contract provide for commensurate penalties in case of late delivery. (6) When bid prices are expressed in two or more currencies, the prices of all bids shall be converted to Nigerian currency, according to the rate and date of rate specified in the solicitation documents. (7) If suppliers were pre-qualified, verification of the information provided in the submission or prequalification shall be confirmed at the time of award of contract and award may be denied to a bidder who no longer has the capability or resources to successfully perform the contract. (8) After opening of bids, information relating to the examination, clarification and evaluation of bids and recommendations concerning award shall not be disclosed to bidders or to persons not officially concerned with the evaluation process until the successful bidder is notified of the award. Acceptance 33.—(1) The successful bid shall be that submitted by the lowest cost bidder of bids. from the bidders responsive as to the bid solicitation. (2) Notwithstanding subsection of this Section, the selected bidder needs not be the lowest cost bidder provided the procuring entity can show good grounds derived from the provisions of this Act to that effect. (3) Notice of the acceptance of the bid shall immediately be given to the successful bidder. Public Procurement Act 2007 No. 14 A 229 34.—(1) A procuring entity may grant a margin of preference in the evaluation Domestic of tenders, when comparing tenders from domestic bidders with those from foreign preferences. bidders or when comparing tenders from domestic suppliers offering goods manufactured locally with those offering goods manufactured abroad. (2) Where a procuring entity intends to allow domestic preferences, the bidding documents shall clearly indicate any preference to be granted to domestic suppliers and contractors and the information required to establish the eligibility of a bid for such preference. (3) Margins of preference shall apply only to tenders under international competitive bidding. (4) The Bureau shall by regulation from time to time set the limits and the formulae for the computation of margins of preference and determine the contents of goods manufactured locally. 35.—(1) In addition to any other regulations as may be prescribed by the Mobilization Bureau, a mobilization fee of not more than 15% may be paid to a supplier or fees. contractor supported by the following : (a) in the case of National Competitive Bidding - an unconditional bank guarantee or insurance bond issued by an institution acceptable to the procuring entity ; and (b) in the case of International Competitive Bidding, an unconditional bank guarantee issued by a banking institution acceptable to the procuring entity. (2) Once a mobilization fee has been paid to any supplier or contractor, no further payment shall be made to the supplier or contractor without an interim performance certificate issued in accordance with the contract agreement. 36. The provision of a Performance Guarantee shall be a precondition for the Contract award of any procurement contract upon which any mobilization fee is to be paid, performance provided however it shall not be less than 10% of the contract value in any case or guarantee. an amount equivalent to the mobilization fee requested by the supplier or contractor whichever is higher. 37.—(1) Payment for the procurement of goods, works, and services shall be Interest on settled promptly and diligently. delayed payments. (2) Any payment due after more than sixty days from the date of the submission of the invoice, valuation certificate and confirmation or authentication by the Ministry, Extra-Ministerial Office, Government Agency, Parastatal or Corporation shall be deem a delayed payment. (3) All delayed payments shall attract interest at the rate specified in the contract document. (4) All contracts shall include terms, specifying the interest for late payment of more than sixty days. A 230 2007 No. 14 Public Procurement Act Recorded 38.—(1) Every procuring entity shall maintain a record of the comprehensive procurement procurement proceedings. proceedings. (2) The portion of the record referred to in this Section shall, on request, be made available to : (a) any person after a tender, proposal, offer or quotation has been accepted or after procurement proceedings have been terminated without resulting in a procurement contract ; and (b) suppliers, contractors or consultants that submitted tenders, proposals, offers or quotations, or applied for prequalification, after a tender, proposal, offer or quotation has been accepted or procurement proceeding have been terminated without resulting in a procurement contract. (3) A disclosure of procurement proceeding records, prior to award of contract may be ordered by a court, provided that when ordered to do so by a court, the procurement entity shall not disclose such information, if its disclosure would : (a) be contrary to law ; (b) impede law enforcement ; or (c) prejudice legitimate commercial interests of the parties. (4) The procuring entity shall not be liable to suppliers, contractors or service providers for damages owing solely to failure to maintain a record of the procurement proceedings in accordance with this Section. (5) The records and documents maintained by procuring entities on procurement shall be made available for inspection by the Bureau, an investigator appointed by the Bureau and the Auditor-General upon request, and where donor funds have been used for the procurement, donor officials shall also have access upon request to procurement files for the purpose of audit and review. PART VII — SPECIAL AND RESTRICTED METHODS OF PROCUREMENT Two stage 39.—(1) Notwithstanding the provisions of this Act, the Bureau may issue tendering. Certificate of ‘No Objection’ upon conditions hereinafter prescribed. (2) A procuring entity shall engage in procurement by two-stage tendering : (a) where it is not feasible for the procuring entity to formulate detailed specifications for the goods or works or, in the case of services, to identify their characteristics and where it seeks tenders, proposals or offers on various means of meeting its needs in order to obtain the most satisfactory solution to its procurement needs ; (b) where the character of the goods or works are subject to rapid technological advances ; where the procuring entity seeks to enter into a contract for research, experiment, study or development, except where the contract includes the production of goods in sufficient quantities to establish their commercial viability or to recover research and development costs, where the procuring entity applies this Act to procurement concerned with national security and determines that the selected method is the most appropriate method of procurement ; or Public Procurement Act 2007 No. 14 A 231 (c) where the tender proceedings have been utilized but were not successful or the tenders were rejected by the procuring entity under an open competitive bid procedure and the procuring entity considers that engaging in new tendering proceedings will not result in a procurement contract. (3) The provisions of this Act as regards the process for open competitive bidding shall apply to two-stage tendering proceedings except to the extent that those provisions vary from this Section. (4) The invitation documents : (a) shall call upon suppliers or contractors to submit, in the first stage of two- stage tendering proceedings, initial tenders which contain their proposals without a tender price ; and (b) may solicit proposals that relate to technical, quality or other characteristics of the goods, works or services as well as contractual terms and conditions of supply and may stipulate the professional competence and technical qualifications of the suppliers or contractors. (5) The procuring entity may, in the first stage, engage in negotiations with any supplier or contractor whose tender has not been rejected under an open competitive bidding procedure with respect to any aspect of its tender. (6) In the second stage of the two tender proceedings the procuring entity : (a) shall invite suppliers or contractors whose tenders have not been rejected to submit final tenders with prices on a single set of specifications ; (b) may, in formulating the specifications, delete or modify any aspect of the technical or quality characteristics of the goods, works or services to be procured together with any criterion originally set out in these documents, evaluate and compare tenders and ascertain the successful tender ; (c) may add new characteristics or criteria that conform with this Act ; (d) shall communicate to suppliers or contractors in the invitation to submit firm tenders, any deletion, modification or addition ; and (e) may permit a supplier or contractor who does not wish to submit a final tender to withdraw from the tendering proceedings. (7) The final tenders shall be evaluated and compared in order to ascertain the successful tender as defined in an open competitive bid. 40.—(1) Subject to the approval by the Bureau, a procuring entity may for reasons Restricted of economy and efficiency engage in procurement by means of restricted tendering if : Tendering. (a) the goods, works or services are available only from a limited number of suppliers or contractors ; (b) the time and cost required to examine and evaluate a large number of tenders is disproportionate to the value of the goods, works or services to be procured ; or A 232 2007 No. 14 Public Procurement Act (c) the procedure is used as an exception rather than norm. (2) where a procuring entity engages in restricted tendering on the basis that : (a) the good works and services are available only from a limited number of suppliers or contractors, it shall invite tenders from all the suppliers and contractors who can provide the goods, works or services ; and (b) the time and cost required to examine and evaluate a large number of tenders is disproportionate to the value of the goods, works or services, it shall select in a non-discriminatory manner of the number of suppliers or contractors to ensure effective competition. (3) For the purposes of subsection (2), of this Section, the procuring entity shall cause a notice of the selected tendering proceedings to be published in the procurement journal. (4) The provisions of this Act regarding the open competitive bidding procedure shall apply to the selective tendering proceedings, except to the extent that those provisions are varied by this Section. Request for 41.—(1) A procuring entity may carry out procurements by requesting for quotations. quotations from suppliers or contractors where the value of the goods or works to be procured does not exceed a sum that shall be set in the procurement regulation. (2) Generally quotations shall be obtained from at least 3 unrelated contractors or suppliers. (3) Each contractor or supplier from whom a quotation is requested shall : (a) be informed whether any factors other than the charges for the goods, works or services themselves, such as any applicable transportation and insurance charges, customs duties and taxes are to be included in the price ; and (b) give only one quotation and shall not be allowed to change or vary the quotation. (4) No negotiation shall take place between a procuring entity and a contractor or supplier with respect to a quotation. (5) The procurement shall be awarded to the qualified contractor or supplier that gives the lowest priced responsive quotation. (6) Where the total value of the procurement is not more than a sum that shall be set in the regulation, the procurement entity may not obtain the Bureau’s approval. Direct 42.—(1) A procuring entity may carry out any emergency procurement where : procurement. (a) goods, works or services are only available from a particular supplier or contractor, or if a particular supplier or contractor has exclusive rights in respect of the goods, works or services, and no reasonable alternative or substitute exits ; or (b) there is an urgent need for the goods, works or services and engaging in tender proceedings or any other method of procurement is impractical due to Public Procurement Act 2007 No. 14 A 233 unforeseeable circumstances giving rise to the urgency which is not the result of dilatory conduct on the part of the procuring entity ; (c) owing to a catastrophic event, there is an urgent need for the goods, works or services, making it impractical to use other methods of procurement because of the time involved in using those methods ; (d) a procuring entity which has procured goods, equipment, technology or services from a supplier or contractor, determines that : (i) additional supplies need to be procured from that supplier or contractor because of standardization, (ii) there is a need for compatibility with existing goods, equipment, technology or services, taking into account the effectiveness of the original procurement in meeting the needs of the procurement entity, (iii) the limited size of the proposed procurement in relation to the original procurement provides justification, (iv) the reasonableness of the price and the unsuitability of alternatives to the goods or services in question merits the decision. (e) the procuring entity seeks to enter into a contract with the supplier or contractor for research, experiment, study or development, except where the contract includes the production of goods in quantities to establish commercial viability or recover research and development costs ; or (f ) the procuring entity applies this Act for procurement that concerns national security, and determines that single-source procurement is the most appropriate method of procurement. (2) The procuring entity : (a) may procure the goods, works or services by inviting a proposal or price quotation from a single supplier or contractor ; (b) shall include in the record of procurement proceedings a statement of the grounds for its decision and the circumstances in justification of single source procurement. 43.—(1) A procuring entity may for the purpose of this Act, carry out an Emergency emergency procurement where : procurement. (a) the country is either seriously threatened by or actually confronted with a disaster, catastrophe, war, insurrection or Act of God ; (b) the condition or quality of goods, equipment, building or publicly owned capital goods may seriously deteriorate unless action is urgently and necessarily taken to maintain them in their actual value or usefulness ; or (c) a public project may be seriously delayed for want of an item of a minor value. (2) In an emergency situation, a procuring entity may engage in direct contracting of goods, works and services. A 234 2007 No. 14 Public Procurement Act (3) All procurements made under emergencies shall be handled with expedition but along principles of accountability, due consideration being given to the gravity of each emergency. (4) Immediately after the cessation of the situation warranting any emergency procurement, the procuring entity shall file a detailed report thereof with the Bureau which shall verify same and if appropriate issue a Certificate of ‘No Objection’. PART VIII — PROCUREMENT OF CONSULTANT (SERVICES) Expressions 44. Where a procuring entity wishes to procure services for its needs which of interest to are precise and ascertainable : provide services for (a) it shall solicit for expressions of interest or applications to pre-qualify to ascertained provide the services by publishing a notice to that effect in at least 2 national needs. newspapers and the procurement journal ; (b) where the value of the services to be procured is less than one million naira, or with the approval of the Bureau, of such a low value that only national consultants would be interested, the procuring entity may without placing any notice request at least 3 and not more than 10 consultants or service providers to make proposals for the provision of the services in a format stipulating : (i) a statement of qualifications of the consultant to provide the service ; (ii) a statement of understanding of the procuring entity’s needs ; (iii) the methodology for providing the service ; (iv) the time frame for providing the service ; and (v) the cost or fee for the service. Request for 45.—(1) A procuring entity wishing to procure services for its needs may do proposals to so by requesting for proposals when it intends to enter into a contract for the provide purpose of research, experiment, study or development, except where the contract services for unascertained includes the production of goods in quantities sufficient to establish their commercial needs. viability or to recover research and development cost. (2) The procuring entities shall procure the services of consultants by soliciting for expressions of interest by publishing a notice to that effect in 2 national newspapers and the procurement journal. (3) A procuring entity may make direct requests to a limited number of consultants, requesting proposals for the provision of a service if : (a) the services are only available from no more than 3 consultants ; (b) the time and cost required to examine and evaluate a large number of proposals would be disproportionate to the value of the services to be performed, provided that it invites enough consultants to ensure transparent competition ; or (c) it is in the interest of national defence and security or similar reason of confidentiality. Public Procurement Act 2007 No. 14 A 235 46.—(1) Request for proposals shall include : Content of the requests (a) the name and address of the procurement entity ; for (b) a requirement that the proposals are to be prepared in the English language ; proposals. (c) the manner, place and deadline for the submission of proposals ; (d) a statement to the effect that the procuring entity reserves the right to reject proposals ; (e) the criteria and procedures for the evaluation of the qualifications of the consultants ; (f ) the requirements on documentary evidence or other information that shall be submitted by consultants to demonstrate their qualifications ; (g) the nature and required characteristics of the services to be procured including the location where the services are to be provided and the time when the services are to be provided ; (h) whether the procuring entity is seeking proposals on various possible ways of meeting its needs ; (i) a requirement that the proposal price is to be expressed in Nigerian currency ; (j) the manner in which the proposal price is to be expressed, including a statement on whether the price covers elements apart from the cost of services, such as reimbursement for transportation, lodging, insurance, use of equipment, duties or taxes ; (k) whether the procedure to ascertain the successful proposal shall be based on the lowest cost or quality and cost or a combination of the lowest cost, quality and criteria other than cost but stipulated in the request for proposals ; and (l) a short list to be made of only national consultants for consulting assignment, contract within a set threshold in the procurement regulation provided that national consultants possess such requisite skills. (2) The procuring entity shall provide the same information to every consultant requested to submit proposals. 47.—(1) A consultant shall be allowed to request for clarification on the request Clarification from the procuring entity and such request may be made within a reasonable time to and be specified. modification of requests (2) A procuring entity may, whether on its initiative or as a result of a request for for clarification by a consultant, modify the request for proposals by issuing an proposals. addendum at any time prior to the deadline for submission of proposals. (3) The addendum shall be communicated promptly before the deadline for the submission of proposals to the short listed consultants to whom the procuring entity has provided the request for proposals and shall be binding on those consultants. (4) If the procuring entity convenes a meeting of consultants, it shall prepare minutes of the meeting containing the issues submitted at the meeting for clarification A 236 2007 No. 14 Public Procurement Act of the request for proposal and its responses to those issues, without identifying the sources of the requests for clarifications. (5) The minutes shall be provided promptly before the deadlines for the submission of proposals to the consultants participating in the selection proceedings to enable them take the minutes into account in prepare their proposals. Submission 48.—(1) The procuring entity shall allow sufficient time for the preparation of proposals. and submission of the requested proposals but shall in no case give less than 30 days between the issue of the notice or request and the deadline for submission. (2) The technical and financial proposals shall be submitted simultaneously but in separate envelops. (3) A proposal received after the deadline for submission of proposals shall be returned to the sender unopened. (4) Immediately after the deadline for submission of proposals, the technical proposals shall be opened for evaluation whilst the financial proposals shall remain sealed and kept in a secure bid-box until they are opened publicly. (5) The technical evaluation committee shall not have access to or insights to the financial proposals until the evaluations including any Tender Boards review are concluded. Criteria for 49.—(1) The procuring entity shal1 establish criteria to evaluate the proposals evaluation of and prescribe the relative weight to be accorded to each criterion and the manner in proposals. which they are to be applied in the evaluation of : (a) the qualification experience reliability professional and managerial competence of the consultant or service provider and of the personnel to be involved in providing the services ; (b) the effectiveness of the proposal submitted by the consultant or service provider in meeting the needs of the procuring entity ; (c) the proposal price, including any ancillary or related cost ; (d) the effect that the acceptance of the proposal will have on the balance of payments position and foreign reserves of the government, the extent of participation by local personnel, the economic development potential offered by the proposal, including domestic investment or other business activity, the encouragement of employment, the transfer of technology, the development of managerial, scientific and operational skills and the counter trade arrangements offered by consultant or service providers ; and (e) national defence and security considerations. (2) A procuring entity may accord a margin of preference for domestic consultants or service providers, which shall be calculated in accordance with the regulations and guidelines as issued from time to time by the Bureau and shal1 be reflected in the record of the procurement proceedings. Public Procurement Act 2007 No. 14 A 237 50.—(1) The procuring entity shall select the successful proposal by either General choosing the proposal with : selection procedure (i) the lowest evaluated price, or (services). (ii) the best combined evaluation in terms of the general criteria set out in the request for proposals and the price quoted. (2) The procuring entity shall include in the record of procurement a statement of the grounds and circumstances on which it relied to select either of the procedures in subsection (1) of this Section. (3) Nothing in this Section shall prevent the procuring entity from resorting to the use of any impartial panel of experts to make the selection. 51.—(1) Where the procuring entity elects to choose the successful proposal Procedure for based on technical and price factors, it shall establish a weight with respect to quality selection of and technical price factors of the proposals in accordance with the criteria other proposal where price than price as might have been set out in the request for proposals and rate each is a factor. proposal in accordance with such criteria and the relative weight and manner of application of the criteria as stipulated in the request for proposals ; and then (2) The procuring entity shall compare the prices of those proposals that have attained a rating at or above the threshold ; (3) The procuring entity shall notify the consultants whose proposals did not meet the minimum qualifying mark or were non responsive to the invitation for proposals and terms of reference after the evaluation of quality is completed within a period of 14 working days after the decision has been taken by the procurement entity ; (4) The name of the qualifying consultants, the quality scores for the technical component of the proposal shall be read aloud and recorded alongside the price proposed by each consultant or service provider when the financial proposals are opened ; (5) The procuring entity shall prepare the minutes of public opening of financial proposals which shall be part of the evaluation report and shall retain this record. (6) The successful proposals shall be : (a) the proposals with the best combined evaluation in terms of the criteria established under subsection (1) of this Section from price in the case of quality and cost-based selection ; (b) the proposals with the lowest price in the case of least-cost selection ; or (c) the highest ranked technical proposal within the budget. (7) The Consultants with the winning proposal shall be invited for negotiations, which shall focus mainly on the technical proposals. (8) The proposed unit rates for staff-months and reimbursable shall not be negotiated unless there are exceptional reasons. A 238 2007 No. 14 Public Procurement Act Selection 52.—(1) Where the procuring entity elects to make a quality-based selection, procedure based on consultant’s qualifications or single-source selection, it shall engage in where price negotiations with consultants in accordance with this Section. is not a factor. (2) The procurement entity shall : (i) establish a weight with respect to quality and price of the proposals ; (ii) invite for negotiations on the price of its proposal, the Consultant that has attained the best rating in accordance with subsection (1) of this Section ; (iii) inform the Consultants that attained ratings above the weight that may be considered for negotiations if the negotiations with the consultant with the best rating do not result in a procurement contract ; and (iv) inform the Consultant with the best rating, that it is terminating the negotiations if it becomes apparent to the procuring entity that the negotiations with that Consultant, invited under subsection (b), will not result in a procurement contract. (3) The procuring entity shall, if negotiations with the consultant with the best rating fails, invite the Consultant that obtained the second best rating, and if the negotiations with that Consultant do not result in a procurement contract, the procuring entity shall invite the other suppliers or contractors for negotiations on the basis of their rating until it arrives at a contract or rejects the remaining proposals. (4) The procuring entity shall treat proposals and any negotiations on selection procedure as confidential and avoid the disclosure of their contents to competing consultants. Bureau to 53.—(1) The Bureau may review and recommend for investigation by any recommend relevant authority any matter related to the conduct of procurement proceedings by investigation. a procuring entity, or the conclusion or operation of a procurement contract if it considers that a criminal investigation is necessary or desirable to prevent or detect a contravention of this Act. (2) The relevant authority may in the course of investigation : (a) require an officer, employee or agent of the procuring entity or bidder, supplier, contractor, or consultant to produce any books, records, accounts or documents ; (b) search premises for any books, records, accounts or documents ; (c) examine and make extracts from and copies of books, records, accounts or documents of any procuring entity, bidder, supplier, contractor or consultant ; (d) remove books, records, accounts or documents of the procuring entity, bidder, supplier, contractor or consultant for as long as may be necessary to examine them or make extracts from or copies of them but the investigator shall give a detailed receipt for the books, records, accounts or documents removed ; Public Procurement Act 2007 No. 14 A 239 (e) require an officer,
