Chapter-2 Provisions Relating to Responsibility for Procurement and Procurement methods

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  1. Description of goods, construction works and services to be prepared:
    (1) Prior to procuring any goods, construction work or service, a public body shall prepare a specification, plan, drawing, design, special requirement or other descriptions thereof.
    (2) The descriptions referred to in sub-section (1) shall be prepared on the basis of relevant objective technical and quality characteristics and functions of such goods, work or service.
    (3) In preparing the descriptions pursuant to sub-sections (1) and (2), a particular brand, trademark, name, patent, design, type, origin or producer’s name cannot be specified except where there is no other way of specifying clearly in an intelligible manner the characteristics of the goods, construction work or service. Provided that where there is no other way than such specifying, a particular brand, trademark, name, patent, design, type, origin or producer’s name may be specified, with the words “equivalent to” being mentioned thereafter.
    (4) While specifying in the bidding documents or prequalification documents the descriptions of the technical or quality characteristics of the goods or works or other services and requirements or symbols or terminologies relating to testing, marking, packaging, labeling or conformity certificate, no descriptions, requirements, symbols or terminologies can be so specified as to be irrelevant to the function of such goods, construction work or service, to cause a hindrance in any manner to participation by qualified bidders in the procurement process or to limit competition without justification.

2) Cost estimate to be prepared: (1) A public body shall prepare a cost estimate as prescribed for any procurement whatsoever. Provided that a cost estimate shall not be required for making procurement valued up to one hundred thousand rupees, except for construction works.
(2) A public entity shall update, as prescribed, the cost estimate prepared pursuant to sub-section (1).
2A.14 Approval: (1) A public entity shall approve as prescribed the descriptions referred to in Section 4 and the cost estimate referred to in Section 5.
(2) Except where it is required to amend the descriptions referred to in Section 4 and the cost estimate referred to in Section 5 for such a special reason as prescribed, if, in amending the design or cost estimate once approved, such an amendment differs by more than twenty-five percent of the original cost estimate figure or the act of procurement gets affected for the reason that the defective design has been made or abnormal cost estimate has been prepared, the official who has prepared, examined or approved such a design or cost estimate and the consultant who has been involved in that act shall be liable to action under the prevailing law.

3) Procurement plan to be prepared: A public entity shall, in making procurement valued at an amount exceeding the prescribed limit, prepare a master procurement plan and yearly procurement plan, as prescribed.
3A.15 Standing list to be prepared: (1) Each public entity shall, for procurement to be made pursuant to sub-section (6) of Section 30, clause (a) of sub-section (1) of Section 41, and Section 46, prepare separate lists of suppliers, construction entrepreneurs, consultants, nongovernmental organizations or service providers according to the nature of the procurement, and on the basis of the qualification referred to in sub-section (2) of Section 10.
(2) A supplier, construction entrepreneur, consultant, nongovernmental organization or service provider who wishes to be included in the list referred to in sub-section (1) shall make an application, along with the document as prescribed, to the concerned public entity.
(3) It shall be the responsibility of the concerned public entity to update the standing list referred to in sub-section (1).
(4) The concerned supplier, construction entrepreneur, consultant, non-government organization or service provider shall, for the purpose of sub-section (3), submit an application to the concerned public entity each year.
(5) Other provisions relating to the standing list shall be as prescribed.

Responsibility for procurement activity: (1)16 The chief of the concerned public entity shall be responsible for executing, or causing to be executed, the procurement activity by fulfilling the procedures referred to in this Act.
(2) A public entity shall, in executing the procurement activity pursuant to sub-section (1), get it to be executed by an employee who has such qualification as may be determined by the Public Procurement Monitoring Office and has knowledge or training on procurement.
(3) A public entity shall, for the performance of the following functions, establish a separate division, section or unit on the basis of workload and nature of procurement activity and designate the procurement official17:
(a) To prepare procurement plans,
(b) To prepare, as required, prequalification documents, bidding documents and contract documents in such a way that they do not generally differ substantially from18 the standard bidding documents, standard prequalification documents and standard contract documents prepared by the Public Procurement Monitoring Office,
(c) To so prepare documents relating to proposals for consultancy services as required that they do not generally differ substantially from19 the standard request for proposal prepared by the Public Procurement Monitoring Office,
(d) To publicly publish the notices on procurement,
(e) To issue pre-qualification documents, bidding documents or to forward documents relating to proposals for consultancy service,
(f) To receive and safely retain pre-qualification proposals, bids or proposals for consultancy service,
(g) To submit the pre-qualification proposals, bids or proposals for consultancy service to the evaluation committee for their evaluation and submit the evaluated bids for acceptance, (h) To give notice of acceptance of the pre-qualification proposals, bids or proposals for consultancy service,
(i) To obtain, examine and safely retain the performance guarantee,
(j) To examine, or cause to be examined, the quality of the procured goods, construction works or services,
(k) To provide such information and documents as demanded by the Public Procurement Monitoring Office, and
(l) To perform such other functions as may be prescribed.
(4) In performing, or causing to be performed, the functions referred to in sub-section (3), the authority who is entrusted with the responsibility of the procurement division, section or unit20 shall perform such functions with the approval of the chief of the concerned public entity.
(5)21 The functions, duties and powers of the chief of the procurement division, section or unit established pursuant to subsection (3) shall be as prescribed.
(6)22 It shall be the duty of the chief of the concerned public entity to ensure that the act is completed within the specified time by regularly making, or causing to be made, supervision, monitoring and quality control in order to implement, or cause to be implemented, the procurement contract made in accordance with this Act.

Procurement method to be selected: (1) A public entity shall make procurement by applying any of the following methods based on such conditions and purchase price as prescribed:

(a) For the procurement of goods, works or other services:
(1) Inviting international open bidding,
(2) Inviting national open bidding,
(3) Inviting sealed quotations,
(4) Direct procurement,
(5) Through participation of users’ committee or beneficiary group,
(6) Through a forced account,
(7)23 Lump sum piece rate method,
Explanation: For the purposes of this sub-clause, “lump sum piece rate method” means the method of submitting bids by undertaking to perform the act by what percent less or more than the quantity of each unit and total figure of the cost estimate.
(8) 24 Method of procurement from the producer or authorized seller at the specified rate (catalogue shopping),
Explanation: For the purposes of this sub-clause, “method of procurement from the producer or authorized seller at the specified rate (catalogue shopping)” means the method of procurement through competition in the price specified by the company producing goods of equivalent level after the company which manufactures any goods has published the selling price set by it on the basis of the characteristics, quality and facilities of the product in the website or brochure of the concerned company.
(9) 25 Method of procurement where limited bidders participate (limited tendering),
Explanation: For the purposes of this sub-clause, “method of procurement where limited bidders participate (limited tendering)” means the method of procurement through competition between such producers, suppliers or service providers only if there are limited producers, suppliers or service providers in the procurement of any goods, construction works or services.
(10) 26Method of procurement whereby the new one is procured by returning the old one (buy-back method),
Explanation: For the purposes of this sub-clause, “method of procurement whereby the new one is procured by returning the old one (buy-back method),” means the method whereby, in the case of those goods or machinery, equipment which become of no use after a certain period of time or cannot be auctioned or stored or used from the point of view of public health and environment, the new one is procured by returning such goods or machineries, equipment, upon making their valuation as prescribed, to the concerned manufacturer or supplier.
(b) For the procurement of consultancy services:
(1) By requesting competitive proposals,
(2) Through direct negotiations.
(2) In making procurement pursuant to this Act and the rules framed under this Act, procurement shall not be so made in slices as to limit competition.
(3)27 The provisions relating to the methods of procurement referred to in sub-clauses (7), (8), (9) and (10) of clause (a) of subsection (1) shall be as prescribed.

Procurement to be made by invitation to open bid: Except as otherwise provided for in this Act, a public entity making procurement shall, to the extent possible, make such procurement by making invitation to open bid, and provide equal opportunity to qualified bidders to participate in such procurement process without any discrimination.

Qualification of bidder or proponent: (1) A bidder or proponent shall meet the following qualification in order to get a procurement contract:
(a) In the case of the bidder, the qualification criteria set forth in the bidding documents or where act of prequalification has been conducted for procurement, the qualification criteria set forth in the prequalification documents, and
(b) In the case of the proponent, the qualification criteria set forth in the documents relating to proposals.
(2) In setting forth the qualification criteria in the bidding documents or documents relating to proposals pursuant to sub-section(1), professional and technical qualifications, availability of equipment, past performance, after-sale service arrangements, availability of spare parts, legal capacity, financial resources and condition, punishment for having committed any professional offense and similar other criteria may be set forth.
(3) In setting forth the criteria pursuant to sub-section (2), no provision may be so made as to allow only those construction entrepreneurs, suppliers, consultants or service providers who belong to any particular class to participate in, or to exclude those construction entrepreneurs, suppliers, consultants or service providers belonging to any particular class from participating in, the procurement process.
(4) Evaluation of the bids, pre-qualification proposals and proposals for consultancy service shall be made only in accordance with the criteria set forth in the bidding documents, pre-qualification documents and the documents relating to proposals respectively, and such criteria shall equally apply to all the bidders or proponents without any discrimination.
(5)28 Notwithstanding anything contained elsewhere in this Section, no qualification requirement shall be prescribed for the procurement of a construction work the cost estimate of which is less than twenty million rupees, except for a construction work which is so ascertained by the public entity as requiring the qualification.
(6) If the statement concerning the qualifications which has been submitted by a bidder or proponent is found to be factually false
or materially incomplete, the public entity may disqualify such a bidder or proponent at any time. Provided that minor errors can be corrected by seeking information pertaining thereto from the concerned bidder or proponent.

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Chapter-2 Provisions Relating to Responsibility for Procurement and Procurement methods

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