Vanuatu Consolidated Subsidiary Legislation
Commencement: 22 November 1999
Order 40 of 1999
ARRANGEMENT OF REGULATIONS*
To provide the rules, procedures and methods to be followed in:
(a) arranging or calling for tenders for Government Contracts and the contracting out of Government services or purchasing goods; and
(b) approving or recommending such tenders.
In this Order, unless the context otherwise requires:
"government agency" includes:
(a) an office, entity and instrument of the Government other than a 914 ministry or Minister; and
(b) a Provincial Government Council; and
(c) a municipal council; and
(d) any other instrument, council or organization notified under subsection 1(2) of the Public Finance and Economic Management Act [Cap. 244];
"head of a ministry" means the person appointed as Director-General of a ministry under the Public Service Act [Cap. 246];
“international tender” means a tender which is called from countries outside Vanuatu;
“ministry” means a ministry of Government including a department within a ministry and includes a State-appointed office that has money appropriated to it by Parliament for the purpose of its expenditure;
“public money” means all the resources and entitlements:
(a) owned by, owed to or held by the State; or
(b) held by any ministry, agency or any other person for or on behalf of the Government, a ministry or a government agency, and includes public resources;
“Government Contract” means a contract, arrangement or obligation for the supply of goods or services or the execution of public works in consideration of payment out of public moneys (and includes a subcontract made in relation to any such contract or public work) if the consideration of the Government Contract is over VT 5,000,000, but does not include contracts for raising loans.
*Editor’s note: This Arrangement of Regulations contains links to the body of the Regulations (Control + click)
2. Requirement to follow tendering process
Every Minister, head of a ministry or employee of the Public Service or any other person who is concerned with or responsible for:
(a) arranging or calling for tenders for Government Contracts; or
(b) the contracting out of government services or purchasing goods, services, or supplies on behalf of the State or Government over VT 5,000,000;
(c) approving or recommending such tenders;
must follow the procedures under these Regulations.
(1) Tenders must be called for all Government Contracts;
(2) All tenders must be called by open and competitive bidding except where another process is approved by the Tenders Board under subregulation (3).
(3) The Tenders Board may approve another tender process for projects where a straight open and competitive tender process may not provide the best result in the opinion of the Tenders Board.
(4) Any other tender processes may include:
(a) two stage tendering (eg. request for information followed by selected request for proposal); and
(b) selective tendering (eg. where it is known that limited skills are available to perform the work required); and
(c) period contracts for repetitive purchases.
(5) Any other tender process used must follow any guidelines or instructions issued by the Director General of the Ministry of Finance and Economic Management.
(6) An international tender must be called when it is unlikely that goods or services being purchased can be supplied at the best price or quality from within Vanuatu.
(7) The Tenders Board must decide whether a proposed tender must be put out as international tender and in how many countries the tender should be advertised.
4. Notice of invitation to tender
(1) The Chairperson of the Tenders Board, or another member of the Board appointed by the Chairperson, must approve all tender documents before they are issued.
(2) Notice of an invitation to tender must appear in the press and must be announced by radio.
(3) If a person inquires about details of the goods, services or public works to be tendered, he or she must be given the following:
(a) sufficient information concerning the goods, services or public works, as the case may be, to enable prospective tenders to determine the scope of the contract for the goods, services or public works;
(b) details of the location from which tender documents and further information can be obtained;
(c) details of the office or location to which tenders must be submitted;
(d) a statement that a tender must be in a sealed unmarked envelope, with the name of the tenderer and the tender reference appearing on the front of the envelope;
(e) details of the manner in which the envelopes containing tenders are to be addressed (eg. “Tender Number 3 of 1999 for construction of market”);
(f) the closing date for submission of tenders;
(g) a statement that the Government is not bound to accept the lowest or highest or any tender;
(h) a statement that failure to comply with the tender instructions may lead to disqualification of the tender;
(i) a statement that any attempt by a tenderer to influence the award of the tender in his or her favour will meet with automatic disqualification and may lead to criminal proceedings.
5. Submission of tenders
(1) All tenders must be submitted to the Tenders Board in sealed envelopes.
(2) The Secretary of the Tenders Board must:
(a) date and sign the tenders upon receipt; and
(b) place the tenders in a locked box in the Ministry which is procuring the goods, services or public works in respect of the Government Contract.
(3) The names of the tenderers must not be divulged to anyone prior to the opening of the tenders.
6. Opening of tenders
(1) The Chairperson of the Tenders Board or a member of the Board appointed by the Chairperson, must open all tenders within 7 days after the closing date for the submission of the tenders.
(2) The Chairperson or the member referred to in subregulation (1) must number the tenders received and produce a list showing the following details:
(a) the number of the tender;
(b) the name of the tenderer;
(c) the amount of the tender;
(d) any special conditions of the tender.
(3) The list must be distributed to all members of the Tenders Board.
(4) Late tenders must be returned unopened to the tenderer and must not be considered.
7. Consideration of tenders
(1) After tenders have been opened the appropriate technical officer must submit a report to the Tenders Board within a time limit set by the Chairperson.
(2) The time limit set by the Chairperson must take into account the following:
(a) the size and complexity of the contract being tendered;
(b) the amount of time required to confirm and evaluate information presented in the tenders;
(c) any timeframes or deadlines set for the project being considered;
(d) the workload of the technical officer.
(3) If the Chairperson determines that a tender is a simple tender, the report should be submitted within 14 days.
(4) The tenders must be evaluated by the technical officer and assessed as to their ability to meet criteria such as:
(a) price; or
(b) support services provided; or
(c) quality; or
(d) fitness for purpose; or
(e) delivery timeframes; or
(f) availability of accessories and add-ons; or
(g) any preference for local suppliers; or
(h) reputation and credit worthiness of the tenderer.
(5) The technical officer must determine the relevant criteria to use to assess the tenders and may give more weight to specific criteria (such as price). As an example, in simple tenders price may be the only criterion used. However, for large and specialised tenders a range of criteria with different weight may be used to determine the best supplier where a successful contract depends not only on price.
(6) The report must advise the Tenders Board on the details of each tender and contain the following as a minimum:
(a) the technical officer’s assessment of a reasonable cost for the tendered work;
(b) an assessment of the preferred tenderer in the technical officer’s opinion and the reasons why;
(c) a description of the criteria and weighting used to evaluate the tenders;
(d) a report of each tender’s performance against the evaluation criteria used to determine the preferred tenderer in the technical officers opinion;
(e) details of the tenderer’s previous performance (if any);
(f) a report on compliance of each tenderer with tender conditions.
8. Recommendation by the Board
(1) The Tenders Board must within 7 days after receiving the technical officer’s report:
(a) decide which tender will be recommended to the Council of Ministers for acceptance; or
(b) where the technical officer’s report is not satisfactory to the Board, request further information or clarification from the technical officer.
(2) If further information or clarification is sought from the technical officer, the Chairperson of the Tenders Board must set a deadline for the technical officer to reply.
(3) The technical officer must provide any further information requested within the deadline set by the chairperson.
(4) The Tenders Board must submit a report to the Council of Ministers within 7 days after making a decision on which tender will be recommended to the Council for acceptance.
(5) The report to the Council of Ministers must outline:
(a) the reasons for recommending the chosen tender;
(b) the evaluation criteria used; and
(c) the reasons for using that evaluation criteria; and
(d) any other relevant information
(6) In making a decision, if the Tenders Board does not choose the tender that best meets the evaluation criteria, the Board must include in its report to the Council of Ministers a full explanation of the reasons for doing so.
9. Exceptions to these Regulations
(1) In the case of emergency expenditure, the Tenders Board may choose to recommend a Government Contract to the Council of Ministers without following the procedure set out in regulations 4 to 8. This may only be done when the urgency of the expenditure does not allow sufficient time for the full tender process to be carried out.
(2) Government Contracts funded by foreign donors or other organisations are subject to the provisions of these Regulations, unless they are inconsistent with any requirements of the funding agency.
(3) Where the provisions of these Regulations are not followed due to subregulation (1) or (2), the Tenders Board must outline in their report to the Council of Ministers the exceptional reasons for following a different process.