N.-W.F.P. Procurement of Goods, Works and Services Rules 2003

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NORTH-WEST FRONTIER PROVINCE PROCUREMENT

OF GOODS, WORKS AND SERVICES RULES, 2003

[Gazette of N.-W.F.P., Extraordinary 14^th^ January, 2004]

**No.SO(FR)9-7/2002, dated 29-12-2003.**In exercise of the powers conferred by section 45 of the North-West Frontier Province Procurement of Goods, Works, Services and Consulting Services Ordinance, 2002 (N.-W.F.P. Ordinance No.XVIII of 2002), the Government of the North-West Frontier Province is pleased to make the following rules, namely:

1. Short title and commencement.---(1) These rules may be called the North-West Frontier Province Procurement of Goods, Works and Services Rules, 2003.

(2) They shall come into force at once.

2. Definitions.---(1) In these rules, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them ,that is to say.

(a) "contractor" or "supplier" means according to the context any potential party or the party to a contract with the Procuring Entity;

(b) "earnest money deposit" means the amount required to be deposited by a tenderer in shape of bank draft along with his tender indicating his willingness to implement the contract

(c) "emergency" means a condition requiring immediate action in cases of disaster and danger e.g. floods; breach of canal etc to save human life and habitation ;

(d) "Head of Procuring Entity" means, the Administrative Secretary of the Procuring Department concerned;

(e) "post-qualification" means the process by which the tenderers are screened for their capacity and resources to implement the contract before their financial bid is considered;

(f) "pre-qualifications means the process by which tenderers are first screened for their capability and resources to implement the contract before they are permitted to offer their tenders; and

(g) "tender security" means a security provided to the Tender Accepting Authority in pursuance of the award of contract for satisfactory performance of the contract and includes earnest money or such arrangements as bank guarantees, surety bonds, bank drafts and bills of exchange, etc.

3. General Condition for Procurement with Public Funds.---No liability involving expenditure from public funds shall be created during a procurement proceeding until the expenditure has been sanctioned by the Governor or an authority which powers have been delegated under the NWEP delegation of powers under the Financial Rules and Powers of Re-Appropriation Rules 2001 and the expenditure has been provided for in-the authorized grants and appropriation for the year.

4. Exceptions to applicability of these rules---(1) The provisions of these rules shall not apply to--

(a) procurement of essential items and goods of immediate nature in national calamity as covered under the West Pakistan National Calamities (Prevention and Relief) Act 1958 (W P Act No XXXIII of 1958) provided a Committee constituted of the respective District ;Coordination Officer, District Revenue and . Estate Officer and the Executive District Officer Finance and Planning, makes the procurements;

(b) Procurement, for works of emergency nature may be undertaken by Engineer Incharge of a Division of a nation building Department under the authorization of a superior, not below the Director/Superintendent Engineer or his equivalent in nation building Department. The Director/Superintendent Engineer or his equivalent may authorize such procurements upon request or recommendations of the Engineer Incharge concerned. The Engineer Incharge shall immediately obtain the written confirmation of the authorization and forthwith inform the Administrative Secretary, Accountant-General and District. Coordination Officer concerned stating the nature and probable cost of the procurement being made. The Accountant-General shall immediately bring this fact to the notice of the Finance Department.

The Administrative Secretary on the recommendation of the Chief Engineer, shall confirm or direct stoppage of incurring of the liability within 7 days of the commencement of the emergency works and inform the Finance Department, Accountant-General and District Coordination Officer concerned; and

(c) Specific procurements as may be notified by Government from time to time.

(2) As and when a request is made to the Committee for procurement of any essential items or goods under clause (a) of sub-rule (1), or a recommendation for undertaking procurement for emergency works under clause (b) of sub- rule (1) the Committee or the Director/ Superintendent Engineer or his equivalent shall dispose of the request or recommendation as the case may be, within 24 hours of its receipt.

(3) Notwithstanding the provisions contained in sub rule (1) The Government may exempt, in writing projects funded by International Financial Agencies and foreign donors from the application of these rules as far as they are not inconsistent with Agency/ Donor procurement guidelines in such projects donor procedures shall apply. For ascertaining mode of procurement to be followed financial limits as mentioned in these rules shall be observed for greater transparency as illustrated below. For incurring expenditures the provisions of the North West Frontier Province Delegation of Financial Powers under the Financial Rules and the Powers of Re-Appropriation Rules, 2001, shall be observed.

++Illustration.++--For example in a project a donor and Government provide finances for procuring goods and services. Donor guidelines state that tendering process shall apply for procurements valuing Rs.100,000 or more while Government tendering procedures apply to procurements of Rs.40,000 or more. The project while making procurements of Rs.40.000 or more shall follow tendering procedures instead of nuking procurements on basis of quotations (window shopping) for greater transparency. While following tender procedures, donor guidelines as far as they are inconsistent with Government guidelines shall be observed.

5. Tender Inviting and Tender Accepting Authority.---(1) Where already not provided under departmental rules, the Procuring Entity may appoint one or more officers or a committee of officers to be the Tender Inviting Authority for any specified area, specified procurement or class of goods or services, and

(2) The Tender Accepting Authority for a specific procurement or class of goods or services shall be the same as specified in N.-W.F.P. Delegation of Financial Powers under the Financial Rules and the Powers of Re-Appropriation Rules 2001.

(3) Where desirable, the Tender Inviting Authority and Tender Accepting Authority may be the same.

6. Registration of suppliers and contractors.---The Procuring Entity may register contractor and supplier for supply of goods and services of the value of Epees one million or more or to carry out civil works involving financial implications of rupees five million or more through an advertisement in national dailies. The registration shall be valid for a period of two years, if not terminated earlier by the Procuring Entity.

7. Pre and Post qualification of suppliers and contractors.---(1) For contracts, other than for developmental works, with estimated cost from rupees forty thousand to rupees five million, financial bids may be called for without pre or post qualification of bidders. For contracts with estimated cost in excess of rupees five million, the Procuring Entity may follow pre or post-qualification procedure in accordance with criteria specified in the tender documents.

(2) For development works contracts with estimated cost from rupees forty thousand to rupees ten million, financial bids may be called for without pre or post- qualification of bidders. For development works with estimated cost in excess of rupees ten million, the Procuring. Entity may follow pre or post qualification procedure in accordance with criteria specified in the tender documents.

8. Qualifications of suppliers and contractors.---(1) The Procuring Entity, before registering, pre or post-qualifying of contractors suppliers, as the case may be shall satisfy itself that the suppliers or contractors, besides additional criterion required by the Tender Inviting Authority

(a) possess the necessary professional and technical qualifications, professional and technical competence, financial resources, equipment, managerial capability, experience, and personnel to perform the contract;

(b) have legal capacity to enter -into procurement contract;

(c) have fulfilled their obligations to pay taxes; and

(d) have not been barred by a Procuring Entity with regards to their professional conduct or the making of false statements or misrepresentations as to their qualifications to enter into a contract within a period of three years preceding the commencement of the procurement proceedings or have not been otherwise disqualified pursuant to disbarment proceedings

  1. The Procuring Entity may require contractors or suppliers participating in procurement proceedings to provide appropriate documentary evidence or other information, as it may deem fit to satisfy itself that the contractors or suppliers are qualified in accordance with the criteria mentioned in sub-rule (1),

(3) Any other requirement prescribed pursuant to this rule shall apply equally to all contractors and suppliers

(4) The Procuring Entity shall evaluate the qualifications of contractors or suppliers in accordance with the qualification criteria and procedures set forth in the pre or; post-qualification documents, if any and in the tender documents or other documents for solicitation of proposals, offers or quotations.

9. Disqualification and disbarment of suppliers and contractors.---(1) The Procuring Entity shall disqualify a contractor or supplier if it finds at any time that the information submitted concerning qualifications of the supplier or contractor was false, or a Tender Inviting Authority may disqualify a supplier or contractor where it finds at any time that the information submitted concerning the qualifications of the contractor or supplier was materially inaccurate or incomplete and the supplier or contractor fails to remedy such deficiencies promptly upon request by the Tender Inviting Authority,

(2) A Procuring Entity may debar a contractor or supplier from, taking any further part in a procurement proceeding or in future procurement proceedings in case the contractor or supplier

(a) forms part of a cartel with a view to discourage fair competition .in the bidding process; or

(b) has failed to complete his earlier contract, within a period of three years of the initiation of procurement proceedings, on ground that his approved bid was or has become unprofitable or would result in his suffering of loss; or

(c) offers or attempts to offer inducement of any sort.

10. Inducements from contractors or suppliers.---The Procuring Entity shall reject a tender proposal, offer or quotation; if the contractor or supplier submitting his offer, gives or agrees to give, directly or indirectly, to any current or former officer or employee of the Procuring Entity or other governmental authority a gratuity in any form or offer of employment or any other thing of service or value, as an inducement with respect to an act or decision of or procedure followed by the Procuring Entity in connection with the procurement proceedings. Such rejection of the tender proposal, offer or quotation and the reasons therefore shall be recorded in the record of the procurement proceedings and promptly communicated to the contractor or supplier.

CHAPTER-II

PRE OR POST QUALIFICATION PROCEEDINGS,

11. Pre or post-qualification proceedings.---(1); The Tender Inviting Authority may undertake pre or post-qualification proceedings where required. The provisions of rule 8 shall apply to such proceedings.

(2) If the Tender Inviting Authority undertakes pre or post qualification proceedings it shall provide a set of pre or post qualification documents to each contractor or supplier who requests the Authority in accordance with the invitation to pre or post-qualify and pays the price, if arty, charged for those, documents.

(3) The pre or post-qualification documents shall include, besides others, if necessary the following information:

(a) instructions for preparing and submitting per or post qualification applications;

(b) a summary of the required terms and conditions of the contract to be entered into as a result of the procurement proceedings,

(c) any documentary evidence or other information required to be submitted by contractors or suppliers to demonstrate their

(d) the manner and place for the submission of applications to pre or post qualify and the deadline for the submission, expressed as a specific date and time allowing at least fourteen days from the publishing of advertisement ; and

(e) any other requirements that may be prescribed by the Tender Inviting Authority relating to the preparation and submission of applications to pre or post-qualify and to the pre or post-qualification proceedings.

(4) The Tender Inviting Authority shall respond to request by a contractor or supplier received at least seven days prior to the deadline for the submission of applications to pre or post-qualify, for clarification of the per or post-qualification documents.

(5) The Tender Inviting Authority shall make a decision, applying only the criteria set forth in the pre or post-qualification documents with respect to the qualifications of each contractor or supplier submitting an application to pre or post-qualify.

(6) The Tender Inviting Authority shall promptly notify the result of the pre or post-qualification proceedings. The Tender Inviting Authority may make available to any member of the general public, upon request, the names of all contractors or, suppliers that have been pre or post qualified.

**12. Rules concerning documentary evidence provided by contractors or suppliers.---**The Tender Inviting Authority shall not impose any additional conditions as to the legalization of the documentary evidence other then those provided for in the regulations relating to the admissibility of documents in question. If it requires the legalization of documentary evidence provided by contactors or suppliers to demonstrate their qualifications in procurement proceeding.

13. Procedures for inviting tenders or applications to pre or post qualify.---(1)The Tender Inviting Authority shall invite applications to pre or pos-qualify or where applicable an invitation to tender, through a notice to be published in at least two newspapers (one each in English and Urdu language) having wide circulation.

(2) Where possible the notice of invitation shall be hoisted on the official website.

14. Contents of invitation to pre or post-qualify and invitation to tender---(1) The invitation, to pre or post-qualify and invitation to tender, as the case may be; shall contain the flowing information:

(a) the name and address of the Tender Inviting Authority;

(b) the nature and quantity; and place of delivery of the goods to be supplied, the nature arid location of the works to be undertaken or the nature of the services and the location where they are to be provided;

(c) the desired or required time for the supply of the goods or for the completion of the works, or the ,time-table for the provision of the services,

(d) the criteria and procedures to be used for evaluating tire qualifications of contractors or suppliers;

(e) the means and place for obtaining the tender documents;

(f) the price, if any, charged by the Tender Inviting Authority for the pre qualification or tender documents;

(g) the currency and means of payment for the per or post qualification, or tender documents; and

(h) the place and deadline for the submission of tenders.

(2) Where a Procuring Entity intends to allow payment of mobilization advance. The fact shall be mentioned in the tender documents alongwith terms and conditions approved by Government for payment of the advance.

15. Furnishing of Earnest Money/Tender Security.---(1) The Authority shall 4uire all tenderers to deposit an earnest money.

(2) The earnest money shall be 2 % of the estimated cost of procurement. Tender submitted without depositing earnest money shall be summarily rejected. The successful bidder shall pay 10% of the bid price as tender security through deduction from payments as detailed in the contract agreement where tender security in shape of bank guarantee has not been asked for. Earnest money deposited by successful bidder shall be counted towards tender security and deposited in Treasury under

(3) The tender documents shall specify the period for which the tenderer should hold the prices offered in the tender valid; provided that the initial period of validity shall not be less than ninety days.

(4) The tender documents and the contract shall include a clause for payment of liquidated damages and penalty by the tenderer in the event of non-fulfillment of the terms of the contact, besides forfeiture of earnest money or tender security.

16. Supply of tender documents.---(1) The Tender Inviting Authority shall make available the tender documents from the date indicated in the notice-inviting tender.

(2) The Tender Inviting Authority shall ensure that the tender documents are made available to any person who has remitted the cost of the documents as notified by the Government;

Provided that in cases where the Procuring Entity has a system of registration or pre qualification of suppliers or contractors, the tender documents will be supplied only to registered or per-qualified suppliers or contractors in the appropriate class, as, the case may be.

(3) The Tender Inviting Authority shall promptly deposit in the treasury the sale proceeds of the documents on the day of its receipt or at the latest on the following working day.

17. Clarification to tender documents.---(1) The Tender Inviting Authority may make any changes, modifications or amendments to the tender documents at any time after the issue of the tender documents and before the opening of tender, and shall send intimation of such changes to all those who have purchased the original tender documents. The Tender Inviting Authority, if required, may reasonably extend the time for deposit of the bids whenever changes modifications or amendments to tender documents are made.

(2) If the Procuring Entity convenes a meeting of contractors or minutes of the meeting containing the requests submitted at the meeting for clarification of the tender documents, and its responses to those requests. The minutes shall be provided promptly to all suppliers or contractors to whom the Tender Inviting Authority provided the tender documents.

CHAPTER-III

RECEPIT OF TENDERS AND TENDER OPENING

18. Place and time for receipt of tenders.----(1) The Tender Inviting Authority shall ensure that adequate arrangements are made for the proper receipt and safe custody of the tenders at the place indicted for the receipt of tenders:

(2) The Tender Inviting Authority shall permit the submission of tenders by post or courier; provided that the Tender Inviting Authority shall not be responsible for any delay or loss in transit.

(3) The Tender Inviting Authority may extend the last date and time for receiving tenders after giving adequate notice to all intending tenderers in cases where;--

(a) the publication of the tender notice has been delayed;

(b) the communication of changes, in the tender documents to the prospective tenderers took time; and

(c) any other reasonable ground for such extension, which shall be recorder in writing by the Tender Inviting Authority,

19. Marking of covers, in which the tender is submitted.---The tenderer shall be responsible for-properly superscribing and sealing the cover in which the tender is submitted. The Tender Inviting Authority shall not be responsible for accidental opening of the covers that are not properly superscribed and sealed before the time appointed for tender opening.

20. Minimum time for submission of tenders.---(1) The Tender Inviting Authority shall ensure that adequate time is provided for the submission of tenders. A minimum of thirty days shall be allowed between date of publication of the Notice Inviting Tenders and submission of tenders.

(2) Any reduction in the time stipulated under sub-rule (1) may be specifically authorized by the Head of the Procuring Entity for reasons to be recorded in writing.

21. Opening of tenders.---(1) All the tenders received by the Tender Inviting Authority shall be opened at the time specified in the Notice Inviting Tenders and in cases where an extension of time for the submission of tenders has been given subsequent to the original Notice Inviting Tenders, in accordance with sub-rule (3) of rule 18, at the time so specified subsequently.

(2) The tenders will be opened in the presence of the tenderers or representatives of the tenderers who choose to be present.

22. Procedure to be followed at tender opening.---The following procedure shall be followed at the tender opening;

(a) all the envelopes received containing tenders shall be counted and initialed by the Tender Inviting Authority;

(b) the names of contractors or suppliers who have withdrawn their tenders shall be announced;

(c) all the tenders received in time shall be opened;

(d) a record of the corrections noticed at the time of the bid opening shall be maintained;

(e) the name of the tenderers and the quoted prices shall be read out. The price shall be. circled in ink and page initialed by the Tender Inviting Authority;

(f) the fact whether earnest money security has been deposited and other documents required have been produced shall be indicated;

(g) minutes-of tender opening shall be recoded.

CHAPTER-IV

TENDER EVALUATION

23. Tender Evaluation Committee.---(1) Tender Accepting Authority may constitute a Tender Evaluation Committee, if already not constituted under departmental rules, consisting of such officers as it deems fit to supervise opening of tenders, scrutinize and evaluate the tender documents. Carry out the preliminary examination and detailed evaluation of tenders received and to prepare an evaluation report for the consideration of the Tender Accepting Authority,

(2) The Tender Accepting Authority shall constitute the Tender Evaluation Committee, where the value of tender exceeds rupees five million.

(3) The Tender Evaluation Committee may generally follow the guidelines laid down in the Appendix to these rules in its proceedings.

24. Tender evaluation to be in accordance with evaluation criteria.---The Tender Acceptation Authority shall case the evaluation of tenders to be carried out strictly in accordance with the evaluation criteria indicated in the tender documents.

25. Time taken for evaluation and extension of tender validity.-- The Tender Evaluation Committee shall complete evaluation, of the bids within fifteen days of their opening or from the date of its constitution, if constituted after opening of tenders. A further extension of ten days may be accorded by the Tender Accepting Authority for reasons to be recorded in writing.

(2) The Tender Accepting Authority shall seek extension, in exceptional circumstances with the approval of the Head of Procuring Entity, of the validity of tenders from the tenderers for the completion of evaluation, if it is not completed within the validity period of tender.

(3) In case the evaluation of tenders and award of contract is completed within extended period: all the tenders shall be deemed to have become invalid and fresh tenders may be called for.

26. Process of tender evaluation to be confidential until the award of the contract is notified.---(1) The Procuring Entity shall ensure the confidentiality of the process of tenders evaluation until final orders on the tenders are passed.

(2) Tenderers shall not make attempts to establish unsolicited and unauthorized contact with the Tender Accepting Authority, Tender Inviting Authority or Tender Evaluation Committee after the opening of the tender and prior to the notification of the award. Any attempts by the tenderer to bring to bear extraneous pressures on any of the above Authorities or Committee shall be sufficient reason to disqualify the tenderer.

(3) Notwithstanding anything contained in sub-rule (2), the Tender. Evaluation Committee may seek bona fide clarifications from tenderers relating to the tenders submitted by them during the evaluation of tenders. Changes, if any, in the bid amount as a result of the clarifications shall be recorded separately.

27. Initial examination to determine substantial responsiveness.---- (1) The Tender Inviting Authority shall cause an initial examination of the tenders submitted in order to determine their substantial responsiveness.

(2) During the initial examination the following factors shall be considered;

(a) Whether the tenderer meets eligibility criteria laid down in the tender documents;

(b) whether tender form has been duly signed;

(c) whether the requisite earnest money has been deposited; and

(d) whether the tender is substantially responsive to the requirements set out in the bidding documents including the testing of sample where required.

(3) Tenders found to be substantially unresponsive, on initial examination, under any of the clauses under sub-rule (2) may be rejected by the Tender Accepting Authority. A bidder whose bid has been held unresponsive shall be informed of the reasons in writing upon request.

28. Determination of the lowest evaluated price.---(1) Of the tenders found to be substantially responsive after the initial examination, the qualified tenderer, who has bid the lowest evaluated price in accordance with the evaluation criteria shall be determined.

(2) In determining the lowest evaluated price, the following factors shall be considered, namely;

(a) The quoted price shall be corrected for arithmetical errors;

(b) In case of discrepancy between the prices quoted in words and in figures. Lower of the two shall be considered; and

(c) The evaluation shall include all taxes and duties inclusive of local levies as a part of the price.

29. Preparation of evaluation report and award of tenders.---(1) Tender Evaluation Committee or the officer inviting the tender shall prepare detailed elevation report which shall be considered by the Tender Accepting Authority before taking a final decision on the tender. The contract shall be awarded only to a tenderer qualified in accordance with the criteria set out, whose bid has been determined to be responsive to the tender documents and who has offered the lowest price or lowest evaluated price as the case may be. While accepting the bid it will be ensured that the same is reasonable.

(2) Where the lowest price or the lowest evaluated price is not accepted the Tender Accepting Authority shall record reasons in writing.

(3) As soon as the tenderer qualified to perform the contract is identified the Tender Accepting Authority shall pass orders accepting the tender end communicate the order of acceptance to the successful tenderer.

(4) The tenderer whose tender has been accepted shall execute a contract agreement in the specified format within thirty days of the dispatch of the decision of tender acceptance.

(5) If the tenderer whose tender has been accepted fails to sign the contract, or fails to provide any required security for the performance of the contract, the Procuring Entity shall order the forfeiture of earnest money and shall give order of acceptance to second lowest, or in case of the second bidder to the third lowest bidder and so on, on the same term of forfeiture of earnest money.

30. Return of earnest money or tender security.---The Tender Inviting Authority shall return the earnest money or tender security deposited with the tender or contract when.

(a) the period for which earnest money or tender security was valid expires;

(b) the termination of the tendering proceedings without its culminating in signing of a contract; or.

(c) the withdrawal of the tender prior to the deadline for submission of tenders provided the Tender Inviting Authority receives the notice to withdraw prior to the deadline for submission of tenders.

31. Record of procurement proceedings.---(1) The Tender Inviting Authority shall maintain a record of the procurement proceedings as detailed below:

(a) a brief description of the goods, works or services to be procured or of the procurement need for which the Tender Inviting Authority requested proposals or offers;

(b) the name and addresses of contractors or suppliers that submitted tenders proposals, offers or quotations and the name and address of the supplier or contractor with whom the contract is entered into and the contract price;

(c) information relative to the qualifications or non-submission of any such qualifications, of suppliers or contractors that submitted tenders, proposals, offers or quotations;

(d) the price or the basis for determining the price, and a summary of the other principal terms and conditions of each tender, proposal; offer or quotation and of the procurement contract, where these are known to the Tender Inviting Authority;

(e) a summary of the evaluation and comparison of tender, proposals offers or quotations;

(f) if all tenderer, proposals, offers or quotations were rejected pursuant to rule 32, a statement to that effect and the grounds therefor; and

(g) the information, required by sub-rule (2) of rule 8, if a tender, proposal, offer or quotation was rejected pursuant to that provision.

(2) The record referred to in clauses (a) and (b) of sub-rule (1) of this rule shall, on request, be made available to 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,

(3) The portion of the record referred to in clauses (c) to (g) of sub-rule (1) shall be made available, on request, to contractors or suppliers that submitted tenders, proposals., offers or quotations, or applied for pre qualification, after a tender, proposal, offer or quotation has been accepted or procurement proceedings have been terminated without resulting in a procurement contract provided such disclosure is not contrary to law for the time being in force.

(4) The Procuring Entity shall not be liable to contractors or suppliers for damages owing to failure to maintain a record of the procurement proceedings,

32. Rejection of all tenders, proposals, offers or quotations.---(1) Subject to approval by Head of the Procuring Entity the Tender Accepting Authority may reject all tenders, proposals, offers or quotations at arty time prior to the acceptance of a tender, proposal, offer or quotation. However, before rejection of tender on basis of the bid being unworkable, the bidder shall upon request be given an opportunity to give a detailed analysis of workability of his bid.

(2) The Procuring Entity shall incur no liability by virtue of invoking its authority under sub-rule (1) towards contractor or supplier that have submitted tenders, proposals, offers or quotations.

(3) Notice of the rejection of all tenders, proposals, offers or quotations shall be given to contractor or supplier that submitted tenders, proposals, offers or quotations.

33. Rules concerning description of goods, construction or services.---(1) The technical specifications contained in the tender documents, shall include a detailed description of, goods, works or services that are to be procured.

(2) Unbiased technical specifications shall be prepared by observing the following safeguards, namely;--

(a) use of brand names and catalogue numbers shall be avoided and where it becomes unavoidable, along with the brand name the expression" or equivalent" shall be added;

(b) in the case of work tender, the technical authorities shall prepare estimates based ore the schedule of rates as revised from time to time.

(3) Extension in delivery of goods shall not be allowed as a matter of routine. Where necessary extensions may be allowed subject to:

(a) liquidated damages at the rate of 2% of the value of undelivered goods/equipment per month or a part thereof and shall be recovered from payments due to the supplier from the contract or from other Procuring Entities.

(b) extensions beyond a period of one month may be allowed after obtaining further security of 2-1/2% of the value of the contract from registered firms and 5 % from unregistered firms.

(c) extension shall not be granted where higher prices were accepted due to short delivery period offered by the supplier,

(4) Payment for goods and equipment procured under these rules shall be made after a confirmation has been received from the supplier and the consignee that the goods and equipment supplied/received are in accordance with the advertised specifications and of desired workmanship/quality.

34. Modes of procurement.---(1) Except as otherwise provided by these rules, a Procuring Entity for the procurement of goods, works or services shall adopt tendering proceedings.

(2) For purposes of transparency, fair competition and efficiency, the Procuring Entity shall cause evaluation of offers, proposals or tenders only where a minimum of three responses have been received, unless the Head of the Procuring Entity authorizes the evaluation of less than three tenders after publishing a Notice Inviting Tenders for a second time in the newspapers of wide circulation and for cogent reasons to be recorded in writing.

**35. Request for quotations.---**Where the estimated value of the procurement is less than the amount set forth in rule 7 of the North West Frontier Province Delegation of Financial Powers tinder the Financial Rules and the Powers of Re-Appropriation Rules. 2001, the following procedure shall be observed; provided that a Procuring Entity shall not divide its procurement into separate contracts for the purpose of this rule;

(a) the Procuring Entity shall request quotations from as many contractors or suppliers as practicable. However, in no case the number of quotations shall be less than three;

(b) the Procuring Entity shall entertain a single price quotation from each contractor or supplier, and the contractor or supplier shall not have the right to modify or change the quotation once submitted; and

(c) contract shall be awarded to the contractor or supplier whose quotation is the lowest-priced and meets the specifications and quality needs of the Procuring Entity.

**36. Single-source procurement.-----**Subject to approval by Head of the Procuring Entity. A procuring Entity may engage in single-source procurement when;

(a) the goods, construction or services are available only from a particular contractor or supplier, or a particular contractor or suppler has exclusive rights in respect of the goods, construction or services, and no reasonable alternative or substitute exists; or

(b) the Procuring Entity having procured goods, equipment, technology or services from a contractor or supplier, determines that additional supplies must be procured from that supplier or contractor for reasons bf standardization or because of the need for compatibility with existing goods, equipments technology or services, taking into account the effectiveness of the original procurement in meeting the needs of the Procuring Entity, the limited size of, the proposed procurement in relation to the original procurement, the reasonableness of the price and the unsuitability of alternatives to the goods or services in question; or

(c) the works to be undertaken by a department fall under the category of petty works as defined in the North-West Frontier Province Delegation of Financial Powers under the Financial- Rules and the Powers of Re-Appropriation Rules 2001.

37. Negotiations.---The Tender Accepting Authority with the approval of the Head of Procuring Entity may enter into negotiations with the supplier awarded contract under the provisions of rule 36 to safeguard against quoting of exorbitant prices and to ensure that prices are reasonable keeping in view the requirements of the procurement.

38. Repeat order.---(1) Subject to the approval of Head of the Procuring Entity, a Procuring Entity may enter into fresh agreement with a contractor or supplier to ensure interests of Government and for reasons of economy, compatibility and efficiency for supply of similar goods provided;

(a) a period of not more than four months has elapsed from the date of earlier contract having come into force;

(b) the Procuring Entity has satisfied itself from market survey that the price of the goods has not decreased in the open market; and

(c) the value of repeat order is not more then thirty per cent of the earlier contract for supply of goods or rupees one million whichever is less.

(2) There shall be not more than one repeat order for an original contract.

39. Restricted tendering.---Subject to approval by Head of the Procuring Entity, the Tender Inviting Authority may, where necessary for reasons of economy and efficiency, engage in procurement by means of restricted tendering when the goods, construction or services, by reason of their being highly complex or of specialized nature, or are available only from a limited number of contractors or suppliers.

40. Two-envelope tendering.---(1) In the case of construction or supply and installation of goods, equipment or tenders where post qualification procedure is being followed, the Tender Inviting Authority shall follow the two-envelope tender system as detailed below;

(a) The first envelope shall contain-

(i) the experience and past performance, in the execution of similar contracts;

(ii) the capabilities with respect to personnel, equipment and construction or manufacturing facilities;-

(iii) the financial status and capacity; and

(iv) any other information asked for by the Tender Inviting Authority in the notice inviting proposals or tenders; and

(b) the second cover shall contain the price quoted by the tenderers.

(2) The Tender Inviting Authority shall cause the first cover to be open first and evaluate the tenderer's capacity and resources on the basis of criteria specified in the tender document and on this basis. Prepare a list of technically qualified tenderers.

(3) The Tender Evaluation Committee shall open the second envelope containing the price quotations of only those tenderers who are found technically qualified under sub-rule (2):

41. Period of effectiveness of tenders; modification and, withdrawal of tenders.----(1) Tenders shall be in effect during the period of time specified in the tender documents.

(2) Prior to the expiry of the period of effectiveness of tenders the Tender Inviting Authority may request contractors or suppliers to extend the period for an additional specified period of time. A contractor or supplier may refuse the request without forfeiting his earnest money, and the effectiveness of its-tender will terminate upon the expiry of the unexpended period of effectiveness.

(3) Suppliers or contractors that agree to an extension of, the period of effectiveness of their tenders shall extend or procure an extension of the period of effectiveness of securities provided by them or provide new securities to cover the extended period of effectiveness of their tenders. A contractor or supplier whose security is not extended, or who has not provided a new security, shall be considered to have refused the request to extend the period of effectiveness of his tender,

(4) Unless otherwise stipulated in the tender documents, a contractor or supplier may modify or withdraw his tender prior to the deadline for the submission of tenders without forfeiting his earnest money. The modification or notice of withdrawal shall be effective if the same is received by the Procuring Entity prior to the deadline for the submission of tenders.

CHAPTER-V

ACCEPTANCE OF TENDERS AND REVIEW

42. Acceptance of tender and entry into force of procurement contract.---(1) When a tender has been accepted a notice of acceptance of the tender shall be given promptly to the contractor of supplier submitting the tender provided that the Tender Accepting Authority shall ensure that Standard Declaration Form as prescribed in Schedule annexed to North West Frontier Procurement of Goods, Works, Services and Consulting Services Ordinance 2002, has been duly signed by the Tender Evaluation Committee.

(2) The Procuring Entity, and the contractor or supplier shall sign a written contract within thirty days of the dispatch of the notice referred to in sub-rule (1) to the supplier or contractor.

(3) The contract shall enter into force when the contract has been signed by the contractor or supplier and by the Procuring Entity and tender security if required, has been deposited with the Procuring Entity.

(4) Where the tender documents stipulate that the procurement contract is subject to approval by a higher authority, the procurement contract shall not enter into force before that approval is obtained.

(5) Upon entering into contract with a contractor or supplier, notice of the award of contract shall be given to other contractors or suppliers., specifying the name and address of the contractor or supplier that has entered into the contract.

43. Review.---(1) Unless the procurement contract has already entered into force, a contractor or supplier feeling aggrieved by the order of a Procuring Entity accepting a tender may file an application for review of the decision, clearly mentioning the date of acceptance of tenders and material defects and non observance of rules in the order accepting the renders, to:

(a) the Head of the Procuring Entity if the tender has been accepted by an authority other than the Head of the Procuring Entity or to the Secretary Industries Department where the Head of the Procuring Entity has accepted the tender or the Secretary Law Department where Industries Department is the Procuring Entity for procurements made with Provincial 'Government funds or funds channeled through the Provincial Government.

(b) the District Coordination Officer if the tender has been accepted by a Procuring Entity of a devolved department or to the Secretary Local Government and Rural Development Department where the District Coordination Officer is the Procuring Entity for procurements made with district Government funds.

(2) The applicant shall not be entitled. to modify the review application after its submission.

(3) The reviewing authority shall not entertain an application, unless it has been submitted within 10 days from the dispatch of the communication of the Procuring Entity's decision and a copy of the application for review has been provided to the Tender Accepting Authority.

(4) The reviewing authority shall not entertain a complaint, or continue to entertain a complaint, after the procurement contract has entered into force.

(5) The reviewing authority shall, within 20 days after the submission of the complaint, issue a written decision. The decision shall:

(a) state the reasons for the decision; and

(b) if the complaint is upheld in whole or in part, indicate the corrective measures that are to be taken.

In case no decision is made by the reviewing authority, 'the Tender Accepting Authority without waiting for the outcome of the application for review may enter in to a contract with the successful bidder.

(6) Amy contractor or supplier or any governmental authority whose interests are, or could be, affected by the review proceedings has a right to participate in the review proceedings. A contractor or supplier who fails to participate in the review proceedings shall be barred from subsequently making a similar claim.

(7) The decision of the reviewing authority shall be final and shall be called in question in any Court of law.

APPENDIX

GENERAL PRINCIPLES FOR EVALUATION OF

APPLICATIONS FOR PRE-QUALIFICATION AND

TECHNICAL BIDS FOR POST QUALIFICATION

Applications for prequalification or technical bids for post qualification should normally the evaluated using a three-stage process:

Stage-1 - Preliminary Screening

Stage-2 - Detailed Evaluation

Stage-3 - Determination of Pre-qualified Applicant or

Post-qualified Bidder

A pre qualification application or technical bid for post qualification that does not meet the Stage 1 criteria shall not normally be passed for detailed evaluation. Implementing/ Executing agencies may wish to seek clarification from bidders or verify certain aspects of the application/technical bid, which may be appropriate during both Stage 1 and 2. Where clarification is sought from an applicant tenderer; the date should be specified by which a response must be received if it is to be considered. All clarifications and verifications should be completed before the authority finalizes its pre post-qualification recommendations.

++Stage 1++ : ++Preliminary Screening++

Screening Criteria:

++Should typically establish that:++

the applicant/bidder is eligible for award of contract.

the applicant/bidder has submitted a responsive application/ tender document, and

the applicant/bidder is commercially acceptable.

++Recording of the Preliminary Screening.++

The record sheet should list the criteria given above, the "indicators" used to establish whether the applicant/bidder's response is acceptable, or additional indicators, if added, and the assessment that the executing agency should make about the preliminary screening. The applicant/bidder should not be notified of pre post-qualification outcomes until the approval is given.

Indicators of Compliance

Compliance with the three preliminary or additional screening criteria can be assessed using a "pass/fail" evaluation.

++Indicators of Eligibility:++

The -pre or post-qualified bidders must meet both of the following requirements.

(i) a bidder (including all members of a joint venture (JV) and all subcontractors of a bidder) should be a national of an eligible source;

(ii) a bidder (including all members of a JV and all subcontractors of a bidder) should not be affiliated with a firm or entity.

(a) that has provided consulting services during the preparatory stages of the works or of the project of which the works form a part. Or.

(b) that has been hired (or is proposed to be hired ) as Engineer for the Contract.

The instructions to bidder for pre/post qualification should state these eligibility requirements and request appropriate declarations. Which can then be reviewed during preliminary screening? It should nevertheless be understood that being determined as eligible at the pre/post-qualification stage would be subject to further verification. If required, before award of contract.

++Indicators of Responsiveness.++

The responsiveness criteria are evaluated on the basis of whether the bidder has satisfied all the requirements for submission of documents and undertakings specified in the Notice or Invitation for pre or post qualification or tender documents as the case may be.

++Indicators of Commercial Acceptability.++

Is the applicant/bidder a proper legal entity with which the executing agency can enter into contract?

Is the applicant/bidder a JV and, if so, does an adequate. JV agreement exist?

Applicant/bidders Legal Status

Preliminary screening should establish what type of enterprise the applicant/bidder is and, his legal status. Sometimes, clarification or verification of commercial details such as company registration may take some time. It is quite possible for the preliminary screening to include that an application/tender document should be passed for detailed assessment, but that per/post qualification will be subject to satisfactory clarification or verification of certain matters.

Private Sector Company

A private sector company is normally a registered company that is a separate legal entity. It may, alternatively be a partnership or a sole trade. Public sector enterprises can take several forms.

Public Sector Enterprise

An "independent" public sector enterprise is defined as one that.

is a commercially oriented legal entity distinct from the is not a Government department.

has substantial financial independence as demonstrated by its obligations to produce separate audited accounts and a return on capital and obtaining its revenues from the sale of goods or services, and

has substantial managerial independence as demonstrated by its ,ability to enter into contracts without reference to the Government.

If a public sector enterprise is not independent; consideration should be given to obtaining confirmation from the applicant/bidder's parent Government, department that the applicant/bidder is authorized and able to execute contact/woks and will be able to mobilize the appropriate resources.

Contractors form JVs to increase their capabilities by pooling their financial and technical resources to Odd the specialized experience of one firm to that of another or to share the risks and profits in

It is required that JV partners agree to be jointly and severally liable for the obligations of the JV. This means that if one of the partners defaults, the remaining partners are obligated to complete the contract. It is therefore appropriate to identify all the JV partners and confirm that each of them individually is a proper legal entity. It is also important that a lead partner be identified that will provide a single point of contact and be responsible on behalf of the JV. The lead partner must be that partner with the essential experience.

STAGE 2: DETAIED EVALUTION

++Establishing whether the applicant/bidder has adequate:++

financial capacity;

technical capability; and

relevant experience (including past performance)

There are no precise means of treasuring these criteria thoroughly and a series" of indicators or" factors "can again be used for each criterion, which can collectively give the executing agency a measure of confidence about whether an applicant/bidder satisfies the criterion. A large number of factors can be devised. Which set of factors or indicators will be appropriate for any particular contract depends upon the value of the assignment, its complexity, and most importantly, the associated risk to the implementing/executing agency. The choice of appropriate factors also depends upon the practicality of collecting and assessing pertinent information, including the time and resources that the executing agency or its consultants have available for the task.

Evaluating information submitted by an applicant/bidder for per/post qualification means making judgments on the applicant/bidder's capability to carry out the assignment under a. given contract. Evaluation systems aim at minimizing subjective judgments by defining, before the evaluation begins, the factors that are to be evaluated and the criteria to be used in the evaluation of the information submitted with respect to each factor.

A "scoring" system shall provide greater flexibility for the exercise of judgment over the information from applicant/bidder, which is very variable in nature and not amenable to precise measurements of acceptability. A scoring system also recognizes that several factors collectively will give an implementing/executing agency confidence about whether a criterion has been met. While an individual factor might be misleading. The scoring system has to be defined and agreed to before the invitation for Pre qualification or Tender Document is issued. This will ensure that subjective decision-making process is unbiased and any dispute arising from the application of the scoring system is kept at a manageable level,

The scoring system includes setting minimum scores for each criterion that must be reached by an applicant/bidder to allow pre/post qualification. In addition an overall minimum score that is higher than the sum of the minima for the individual criteria can be established. This ensures that application/tender documents barely satisfying the criteria and therefore having an overall weakness should not be qualified, while an applicant/bidder, who barely satisfies, say, one or two criteria can be qualified by virtue of scoring well above the minimum for other criteria.

The scoring system described herein is an illustration for civil works of a general nature. It should be reviewed and refined by implementing/executing agencies to suit the particular circumstances of their contracts.

++The scoring System++.

The major futures of the scoring system are--

establishment of groups of evaluation factors and the assignment of a minimum score to be reached for each group if an applicant/bidder is to be considered for qualification;

establishment of criteria for assigning numerical values to qualitative information (this is done by determining the number of points to be scored for different levels of quality reflected in the information submitted with respect to each factor); and

assignment to each group of factors, and to each factor within a group, of a percentage of the total number of points that best reflects the relative importance of each factor for the determination of an applicant/ bidder's overall qualifications.

Groups of Factors

Usually three groups of factors are used to measure an. applicant/bidder's qualifications:

financial capability;

technical qualifications (primarily factors relating to an applicant/bidder's capability to provide the management, staff, and equipment needed); and experience (including past performance).

A larger number of groups of factors can be used and needs to assed separately. For example, if the capability to make a particular item of plant or equipment available is of utmost importance (like a tunnel boring machine in case of tunneling works), "plant and equipment" can be made separate group and assigned a specific minimum score for qualification.

Distribution of points

After determining the maximum number of points (usually 100), the points, must be distributed among the groups of factors in accordance with the importance of each group for determining 'an applicant/bidder's qualification to carry out the required works. For example, if experience is especially important because of the complexity or difficulty of the construction works, that fact should be reflected in the percentage of the maximum score allocated to the "experience" group, the same principle governs the allocation of points assigned to the individual factors within that group.

++Evaluation Criteria.++

"Criteria" are defined as the scales used to measure qualification with respect to a given factor, i.e., the way in which information submitted in the pre qualification application or post-qualification technical bid is translated into points. Wherever possible, the criteria are expressed quantitatively (i.e number, value and size of previous contracts for similar work, experienced technical staff).

STAGE 3: DETERMINATION OF QUALIFIED BIDDERS

Additional information

While the scores from the detailed evaluation stage will often indicate the appropriate pre or post-qualification decision, they should not be a substitute for sound judgment, Any information that is not fully taken into account in Stages 1 and 2 of the evaluation process but that is nevertheless pertinent to the qualification should be considered. Information about litigation or defaults on ongoing contracts that casts serious doubt on the applicant/bidder's capability to perform new contract is one such example.

Confirming the qualifications of bidders at the contract award stage must be given proper emphasis. Too frequently, there tends to be a presumption that a pre qualified bidder must be capable of performing the work satisfactorily. This is not necessarily so. Several aspects of" capability, "such as financial capacity and availability of resources (personnel. Equipment and money), may change between pre qualification and contract award, especially when many months elapse between the two.

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