Government Procurement Bill

“Agreement on Government Procurement” means the Agreement by that name done at Marrakesh on 15th April 1994;

“award”, in relation to a contract or tender, means to accept an offer made;

“challenge proceeding” means any proceeding under Part III;

“Commissioner” means the Commissioner appointed by the Minister under section 8(2) and includes an acting Commissioner appointed by the Minister under section 8(9);

“contracting authority” means a ministry or department of the Government, an organ of State or a statutory board, declared by the Minister, by order made under section 4, as a contracting authority for the purposes of this Act;

“Deputy Commissioner” means a Deputy Commissioner appointed by the Minister under section 8(2);

“document” includes an electronic record;

“legal officer” has the same meaning as in the Government Proceedings Act (Cap. 121);

“procurement” means procurement of goods or service or a combination of goods and service by any contractual means, such as purchase or lease, rental or hire purchase, with or without an option to buy the goods or service or combination of goods and service;

“procurement subject to the Act” means a procurement declared by the Minister, by order made under section 4, to be a procurement subject to the Act;

“qualification of suppliers” means a process undertaken by a contracting authority to shortlist suppliers for a particular procurement, a particular type of procurement or procurement in general;

“relevant State” means a country or territory declared by the Minister, by order made under section 3, as a relevant State for the purposes of this Act;

“relevant supplier” means a supplier —

“supplier” means a person who sought, or who seeks, or who would have wished, to be the person to whom a contract of procurement, being a procurement subject to the Act, is awarded;

“Tribunal” means the Government Procurement Adjudication Tribunal established under section 8.

The Minister may, by order published in the Gazette, declare any ministry or department of the Government, organ of State or statutory board as a contracting authority for the purposes of this Act.

The Minister may, by order published in the Gazette, declare a procurement to be subject to the Act.

An order made under subsection (2) may identify the procurement by one or more of the following:

An order made under subsection (2) may specify —

The Minister may issue a certificate certifying that a particular procurement is not a procurement subject to the Act by virtue of section 4(4)(b).

The Minister may issue a certificate certifying that a ground referred to in section 4(4)(c) exists in relation to a particular procurement or an act or measure in relation to a particular procurement.

A certificate issued under subsection (1) or (2) shall be conclusive evidence of the matters so certified.

The Minister may, for the purposes of implementing the Agreement on Government Procurement, make regulations to govern procurements subject to the Act.

Without prejudice to the generality of subsection (1), the regulations may prescribe —

Subject to an order made under section 4(2), a contracting authority shall, in undertaking a procurement subject to the Act, comply with the regulations made under section 6.

The duty of a contracting authority referred to in subsection (1) is a duty owed to —

A breach of a duty referred to in subsection (1) shall not be the subject of any proceedings in any court but may be the subject of a challenge brought before the Tribunal by a supplier to whom the duty is owed and who has suffered, or reasonably risks suffering, loss or damage as a result of the breach.

For the purposes of hearing and determining challenges referred to in section 7(3), there shall be established a Tribunal to be called the Government Procurement Adjudication Tribunal consisting of the Commissioner or a Deputy Commissioner.

The Minister shall appoint a Commissioner and such number of Deputy Commissioners as he thinks fit.

The Commissioner and Deputy Commissioners shall be appointed for a period of 2 years and shall be eligible for reappointment.

No person shall be appointed or shall continue to hold office as Commissioner or Deputy Commissioner if he —

The Commissioner or a Deputy Commissioner may at any time resign from his office by giving notice in writing to the Minister.

The Commissioner and Deputy Commissioners shall be deemed to be public servants within the meaning of the Penal Code (Cap. 224), and shall enjoy the same judicial immunity as is enjoyed by a Judge of the Supreme Court.

The Commissioner and Deputy Commissioners shall be paid such remuneration and allowances as the Minister may from time to time determine.

The Minister may at any time revoke the appointment of a Commissioner or Deputy Commissioner who —

When the Commissioner is or is expected to be absent from duty, the Commissioner or, if the Commissioner is absent, the Minister may appoint a Deputy Commissioner to be acting Commissioner during the absence of the Commissioner.

The Minister shall appoint a Registrar of the Tribunal and such other officers of the Tribunal as the Minister considers necessary.

The duties of the Registrar and other officers of the Tribunal shall, subject to this Act and any regulations made thereunder, be as the Minister directs.

The Registrar and other officers of the Tribunal shall be deemed to be public servants for the purposes of the Penal Code.

Subject to subsection (2), a challenge proceeding shall be heard and disposed of by the Tribunal consisting of the Commissioner or a Deputy Commissioner designated by the Commissioner.

The Commissioner or a Deputy Commissioner shall not hear or dispose of any challenge proceeding if he is directly or indirectly interested in the procurement in relation to which the proceeding is brought.

Where the Commissioner has commenced the hearing of a challenge proceeding and is unable through death, illness or other cause to complete the hearing or to dispose of the proceeding —

Subject to subsection (2), where a Deputy Commissioner who has commenced the hearing of a challenge proceeding is unable through death, illness or other cause to complete the hearing or to dispose of the proceeding, the Commissioner may designate another Deputy Commissioner to complete the hearing and dispose of the proceeding, or may himself complete the hearing and dispose of the proceeding.

The applicant and the contracting authority concerned may be represented by an advocate and solicitor at the hearing of any challenge proceeding.

Where the contracting authority concerned is a ministry or department of the Government or is an organ of State, a legal officer may appear as advocate on behalf of the contracting authority and may make and do all appearances, acts and applications in respect of the proceeding on behalf of the contracting authority.

A supplier who wishes to bring a challenge before the Tribunal (referred to in this Act as the applicant) shall, within 15 days from the date the facts constituting the basis of the challenge first took place —

The Notice of Challenge shall be in such form and shall contain such information, and be accompanied by such documents, as may be prescribed.

The applicant shall, at the time of lodgment of the Notice of Challenge with the Registrar of the Tribunal, deposit in cash or in such other form as the Registrar in a particular case may allow, such sum as may be prescribed (referred to in this Act as the deposit).

The challenge shall be deemed to have been withdrawn if the applicant fails to comply with subsection (1).

The deposit shall be used by the Registrar to pay any costs awarded by the Tribunal to the contracting authority concerned under section 21 in relation to the challenge.

Where the deposit is insufficient to cover the costs referred to in subsection (3), the contracting authority concerned may recover the balance of the costs in the manner referred to in section 21.

The Registrar shall, after the challenge has been disposed of by the Tribunal and if he is satisfied that there is no outstanding claims for costs by the contracting authority concerned against the applicant, release the deposit or the balance of the deposit, as the case may be, to the applicant.

The Tribunal may at any time, on its own motion or upon the application of the contracting authority concerned, hear and determine, as a preliminary issue and with a view to a possible final disposal of the challenge, the validity of the challenge.

For the purposes of subsection (1), the Tribunal shall declare a challenge invalid if —

For the purposes of subsection (2)(e), the Tribunal shall take into account the date the applicant became aware, or ought reasonably to have become aware, of the facts constituting the basis of the challenge, and may, in granting any permission to the applicant to proceed with the challenge, impose such conditions as it considers just on the applicant.

If the applicant fails to comply with any of the conditions imposed by the Tribunal under subsection (3), the Tribunal may declare the challenge invalid.

The applicant may, at any time after he has —

The Tribunal may, in its discretion, make the order either unconditionally or upon such terms and conditions as the Tribunal thinks just.

The Tribunal shall not make an order under this section if —

If the Tribunal refuses to make an order under this section, it shall give the reasons for its refusal in writing.

Where an order under this section has been made, the contracting authority concerned may, at any time before the determination on the challenge referred to in section 18 is made, apply to the Tribunal for the order to be varied or rescinded.

Subject to subsection (7), the Tribunal may, in its discretion, vary or rescind the order either unconditionally or upon such conditions as it thinks just.

The Tribunal shall rescind the order if the continuance of such suspension is against the public interest.

The Minister may issue a certificate that such suspension, or the continuance of such suspension, in a particular case is against the public interest, and such a certificate shall be conclusive evidence of the matters so certified.

The onus of proving the breach of duty which is the subject of the challenge shall be on the applicant.

Except with the consent of the Tribunal and in accordance with such conditions as the Tribunal may determine, the applicant may not, at the hearing of the challenge, rely on any breach of duty other than that identified in the Notice of Challenge.

The Tribunal shall issue its determination on a challenge within 45 days from the date of lodgment of the Notice of Challenge by the applicant unless there are exceptional circumstances justifying an extension of time.

Subsection (1) shall not apply if the challenge has been disposed of under section 15.

If the Tribunal makes a determination in favour of the applicant, it may do one or more of the following:

An order made under subsection (3)(b) may specify the decision or action which the contracting authority is to make or take.

Notwithstanding subsection (3), if —

Every determination and order of the Tribunal shall be given in writing and shall include a statement of the Tribunal’s reasons for the determination or order, as the case may be.

The Registrar shall, within 7 days of the making of the determination or order, send certified copies of the determination or order to the applicant and the relevant contracting authority.

A contracting authority against whom an order under section 16 or section 18(3)(a), (b) or (c) is made shall comply with the order.

An applicant in whose favour an order under section 18(3)(d) is made may recover the amount ordered to be paid to him by an action for a debt in any court of competent jurisdiction.

This section is without prejudice to the right of the contracting authority to seek judicial review of a determination or order of the Tribunal.

Subject to any regulations made under this Act, the costs of any challenge proceeding, including the costs of the Tribunal, shall be at the discretion of the Tribunal.

The costs may be recovered as if they were costs in a suit in the High Court and as if the determination of the Tribunal in relation to the costs were a decree made in the High Court.

Subject to the provisions of this Act and any regulations made thereunder, the Tribunal shall have the power to determine the procedure to be adopted for any challenge proceeding.

The Tribunal shall have the following additional powers:

The expenses referred to in subsection (2)(b) and the remuneration referred to in subsection (2)(c) shall form part of the costs of the challenge proceedings and, pending and subject to any order made by the Tribunal as to such costs, shall be paid by the applicant or the contracting authority concerned, as the Tribunal may direct.

Evidence of any thing said, or of any admission made, in the course of any mediation referred to in subsection (2)(d) shall not be admissible in any proceedings before the Tribunal or any court.

Where the Minister certifies that it is against the public interest for any challenge proceeding to take place in public, the Tribunal shall conduct the proceeding in camera.

This Act shall not apply to or affect any procurement which has been initiated before the commencement of this Act.

For the purposes of subsection (1), a procurement is deemed to have been initiated if —