DRAFT PUBLIC PROCUREMENT REGULATIONS

FOR PROCUREMENT OF CONSULTANCY SERVICES, 2006

 S.R.O.                                     .- In exercise of powers conferred by section 27 of the Public Procurement Regulatory Authority Ordinance, 2002 (XXII of 2002), the Public Procurement Authority is pleased to make the following regulations namely:-

 1.                     Short title and commencement.-   (1) These regulations may be called the Public Procurement Regulations for Procurement of Consultancy Services,2006.

(2)       They shall come into force one month after the notification date.

GENERAL PROVISIONS

 2.                     Definitions.-  (1) In these  regulations, unless there is anything repugnant in the subject or context:-  

(a)   “bidding” means the formal procurement procedure under which sealed bids are invited, received, opened, examined and evaluated for the purpose of awarding a contract;

(b)   “Committee” means the Consultant Selection Committee of the procuring agency;

(c)   “Consultant” means an individual consultant or a consulting firm as the case may be;

(d)   “Consulting services” means the provision of independent expert advice of a quality at least equal to the applicable professional standards in relation to acquisition of goods, services (other than Consulting Services) and works;

(e)   “Request for proposal (RFP)” means set of bidding documents sent to short listed Consultants and includes at least:-

(i)                 letter of invitation;

(ii)               instructions to Consultants;

(iii)             terms of reference;

(iv)              evaluation criteria; and

(v)                the proposed contract.

(f)     “Terms of reference” means defining and elaborating on the objectives and intended scope of services at the time of invitation of proposals.  

(2)       The expressions used but not defined in these regulations shall have the same meanings as are assigned to them in the Public Procurement Regulatory Authority Ordinance, 2002 and Public Procurement Rules, 2004. 

3.                     Systems for selection of Consultants.- The selection system shall be determined by the procuring agency prior to issuance of the request for proposals from prospective Consultants. A procuring agency may utilize one of the following systems for selection of Consultants, namely:- 

(a)               Quality based selection (QBS).- This system will be used for highly specialized and complex assignments, where quality is the only factor taken into consideration.

(b)               Quality and cost based selection (QCBS).- This system will be used where high quality is the prime consideration while cost is a secondary consideration.

(c)               Least cost.- This system will only be used for assignments of standard or routine nature, where well established practices and standards exist. 

(d)               Single source/direct selection.- This method will be used only in exceptional cases, where it provides clear advantage over competition such as:- 

(i)     for tasks which are natural continuation of previous assignment and where continuity of technical services is required;

(ii)   for very small assignments;

(iii) in cases of emergency; and

(iv) where only one Consultant is qualified or has experience of exceptional worth.  

(e)               Fixed budget.- This system shall be used only when the assignment is simple, can be precisely defined and when the budget is fixed. The request for proposals shall indicate the available budget. Proposals that exceed the indicated budget shall be rejected. The ranking shall be based only on evaluation of technical proposals of the qualified bidders. 

4.                     Criteria for eligibility of Consultants.- The procuring agency shall not hire a Consultant for an assignment in which there is possibility of conflict of interest. If a Consultant has been engaged by the procuring agency to provide goods or works for a project, it shall be disqualified from providing Consulting services for the same project. Similarly, Consultant should not be hired for any assignment which by its nature, may be in conflict with another assignment of the Consultant. 

5.                     Expression of interest (EOI).- (1) A request for EOI shall be advertised giving applicants at least two weeks for national competition and four weeks for international competition to submit their interest to provide consultancy services.  

(2)       The EOI shall contain at least the following information:-  

(a)         the name and address of procuring agency;

(b)         an appropriate description of the assignment providing scope of the       intellectual and professional services required;

(c)         deadline and place of the submission of the EOIs; and

(d)         criteria for short listing or prequalification where required.  

6.                     Criteria for short-listing of Consultants.- (1) Whenever short-listing is deemed necessary, the procuring agency shall predetermine a criteria for short listing. Except for single source, there will normally be a minimum of three Consultants in the shortlist, but there is no upper limit for number of candidates to be short listed. However, if less than three candidates apply, their proposals may be considered on merit.  

(2)       The procuring agency while engaged in short listing of Consultants will take into consideration the following factors, namely:-

i)                   Qualification;

ii)                 Experience; and

iii)               Any other factor that a procuring agency may deem relevant, not inconsistent with these  regulations or Public Procurement Rules, 2004.  

(3)       All applicants shall be informed whether or not they have been short-listed.  

7.                     Criteria for prequalification of Consultants.- (1) Whether short-listing is done or not, the procuring agency may engage in prequalification of Consultants in case of complex assignments.  

(2)       The procuring agency while engaged in prequalification of Consultants will take into consideration the following factors, namely:-         

(i)            Qualification;

            (ii)            General experience;

            (iii)            Specific experience; and

            iv)            Any other factor that a procuring agency may deem relevant, not             inconsistent with these regulations or Public Procurement Rules, 2004. 

(3)            Prequalification of Consultants, where required, shall be processed in accordance with Rule 16 of Public Procurement Rules, 2004. 

8.                     Request for proposals (RFP).- (1) The procuring agency shall use an RFP for seeking proposals from the Consultants which shall include the following, namely:-  

(a)       Letter of invitation (LOI).- The LOI shall mention the name and address of the procuring agency and shall state the intention of the procuring agency to enter into a contract for provision of Consulting services.  

(b)       Instruction to Consultants.- The instructions to Consultants shall contain all necessary information that would help them prepare responsive proposals and shall bring as much transparency as possible to the selection system. 

(c)        Terms of reference (TOR).- TOR shall unambiguously define the objectives, goals and scope of the assignment besides conditions of contract. TOR shall list the services and surveys necessary to carry out the assignment and expected outputs.  

(d)       Evaluation criteria.- Except as otherwise provided, the evaluation of proposals shall be carried out giving due consideration to quality and cost.  

(e)       Type of contract.- The procuring agency, depending on the circumstances, may use one of the following types of contract, namely:-  

(i)                 Lump sum contract will be used mainly for assignments in which the content, duration of the services and the required output are unambiguously defined;

(ii)               Time based contract will be used when it is difficult to define the scope and the length of services;

(iii)             Hourly or daily rates will be used for small projects, especially when the assignment is for less than a month; and

(iv)              Any other, based on combination of the above and including out of pocket expenses, where required.

(f)         Special provisions.- The procuring agency may specify any other requirement related to the assignment or contract etc where required.  

(2)       The procuring agency will invite the prospective Consultants to submit their technical and financial proposals in separately sealed envelopes. The procuring agency shall give deadline for submission of proposals. Consultants shall be given adequate time in which to prepare their proposals which shall not be less than four weeks.  

9.                     Selection committee.- (1) The procuring agency shall appoint only one Committee for short listing or prequalification and selection of Consultant. The Committee shall comprise of at least three competent persons from amongst different wings of the organization e.g. planning/design, audit/account, purchase/store, construction/operation etc.  

(2)       The Committee shall advise on short listing and prequalification of consultants.  

(3)       Except for single source selection, the Committee shall evaluate the RFPs in accordance with Rule 36(b) of the Public Procurement Rules, 2004.  

(4)       The bidder whose technical and financial proposal is the most advantageous shall be ranked highest and his bid shall be treated as lowest evaluated bid.  

10.                   Extent of negotiation.- The Committee of the procuring agency may negotiate with the highest ranked bidder regarding methodology, work plan, staffing and special conditions of the contract. The Committee shall not permit substitution of key staff, unless both parties agree that undue delay in selection process makes such substitution unavoidable. Similarly, negotiations shall not seek changes in the rates quoted by the bidder. In case of failure of negotiations, the Committee may invite the next ranked bidder. Negotiations by a single person Committee shall never be allowed.  

11.                   Professional liability of Consultants.- (1) The Consultant selected and awarded a contract shall be liable for consequence of errors or omissions on its part. The extent of liability of the Consultant should be incorporated in the contract and in no case should it be less than remunerations excluding the out of pocket expenses, nor should the liability exceed twice the remunerations.  

(2)       The procuring agency may demand insurance on part of the Consultant to cover its liability as stated above, and necessary costs shall be borne by the Consultant which shall be reimbursed by the procuring agency as out of pocket expenses by the Consultant.  

(3)       The Consultant shall be held liable for all losses or damages suffered by the procuring agency on account of any misconduct by the Consultant in performing the consulting services.  

12.                   Precedence.- The Public Procurement Rules, 2004 and these  regulations are to be taken as mutually explanatory of one another but in case of discrepancy, the  regulations shall take precedence over the Public Procurement Rules, 2004.