The Public Procurement and Disposal of Public Property Bill, … · 2014-07-14 · THE PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC PROPERTY BILL, 2014 Arrangement of Clauses PART I

Fourth Session Tenth Parliament Republic ofTrinidad and Tobago

SENATE

BILLAN ACT to provide for public procurement, and for

the retention and disposal of public property, inaccordance with the principles of good governance,namely accountability, transparency, integrity andvalue for money, the establishment of the Office ofProcurement Regulation, the repeal of the CentralTenders Board Act, Chap. 71:91 and relatedmatters

PRINTED BY THE GOVERNMENT PRINTER, CARONIREPUBLIC OF TRINIDAD AND TOBAGO—2014

AS AMENDED IN THE SENATE

THE PUBLIC PROCUREMENT AND DISPOSAL OF PUBLICPROPERTY BILL, 2014

Explanatory Note

(These notes form no part of the Bill but are intended onlyto indicate its general purport)

The Bill seeks to provide for public procurement and thedisposal of public property in accordance with the principlesof good governance, namely accountability, integrity,transparency, and value for money and the establishment ofthe Office of Procurement Regulation.

PART I

PRELIMINARY

Clause 1 of the Bill cites the short title.

Clause 2 provides for the commencement of the Act, for whichthis is the Bill, by Proclamation.

Clause 3 declares the Act for which this is the Bill to have effecteven though inconsistent with the Constitution.

Clause 4 defines certain words and phrases used in the Bill.

Clause 5 states the objects of the Bill.

Clause 6 stipulates the illegality of acts not done in accordancewith the Act for which this is the Bill.

Clause 7 states the circumstances to which the Act for whichthis is the Bill will apply.

Clause 8 provides that the Act for which this is the Bill bindsthe State.

PART II

THE OFFICE OF PROCUREMENT REGULATION

Clause 9 provides for the establishment and incorporation ofthe Office of Procurement Regulation.

Clause 10 provides for the appointment and composition of theBoard of the Office.

Clause 11 provides for the tenure of office of members of theBoard.

Clause 12 empowers the President to remove a member of theBoard from office in certain stated circumstances.

Clause 13 states the functions of the Office of ProcurementRegulation.

Clause 14 provides for the powers of the Office of ProcurementRegulation.

Clause 15 provides for matters relating to meetings of theBoard.

Clause 16 provides for the appointment of committees by theBoard.

Clause 17 requires members of the Board or a committee todisclose any interest they may have in a matter that is beingconsidered by the Board.

Clause 18 provides for the appointment of the requisite staff ofthe Board.

Clause 19 authorises the secondment of personnel from thepublic service or any commission, authority or body to the service ofthe Office of Procurement Regulation.

Clause 20 requires the establishment of a pension fund plan bythe Office of Procurement Regulation.

Clause 21 provides for the source of funding of the Office ofProcurement Regulation.

Clause 22 applies section 116 of the Constitution to theaccounts of the Office of Procurement Regulation.

Clause 23 provides for the exemptions applicable to the Officeof Procurement Regulation.

Clause 24 requires the Office of Procurement Regulation toprepare and submit an annual report to Parliament. This clausealso specifies the matters that are to be addressed in the report.

Clause 25 specifies the financial year of the Office ofProcurement Regulation.

PART IIIGENERAL PROVISIONS

Clause 26 requires the Office of Procurement Regulation toestablish a database to be known as “the Central Depository”.

Clause 27 requires a procuring entity to publish informationwith respect to planned procurement activities.

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Clause 28 seeks to encourage local industry by authorizing aprocuring entity to limit participation in procurement proceedingsto promote local industry development and local content.

Clause 29 stipulates the criteria that suppliers and contractorsmust meet in order to satisfy a procuring entity of theirqualification for consideration.

Clause 30 requires a procuring entity to comply with guidelinesor handbooks that are issued or approved by the Office ofProcurement Regulation with respect to public procurement.

Clause 31 prohibits the splitting of procurements in order toavoid obligations under the Act for which this is the Bill.

Clause 32 prohibits the division or estimation of a procurementin order to limit competition.

Clause 33 provides for the cancellation of a procurement by aprocuring entity.

Clause 34 empowers a procuring entity to reject anabnormally low submission presented by a supplier or contractor.

Clause 35 provides for the procedure for the acceptance of asuccessful submission and the entry into force of a procurementcontract.

Clause 36 provides for the procuring entity to publish notice ofthe award of a procurement contract or the conclusion of aframework agreement upon entry into force of the procurementcontract or conclusion of a framework agreement.

Clause 37 requires a procuring entity to submit quarterlyreports to the Office of Procurement Regulation of all contracts thatare awarded within the relevant quarter.

Clause 38 authorises the use of electronic processing system inpublic procurement.

Clause 39 provides for confidentiality regardingcommunication between a procuring entity and suppliers orcontractors.

Clause 40 seeks to provide protection to a person who providesinformation about a contravention of the Act for which this is theBill.

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PART IVINVESTIGATION AND ENFORCEMENT

Clause 41 empowers the Office of Procurement Regulation toinvestigate any alleged breach of the Act for which this is the Bill.

Clause 42 empowers the Office of Procurement Regulation toobtain information and documents for the purpose of exercising itsfunctions.

Clause 43 empowers any officer in the service of the Office ofProcurement Regulation to conduct investigations.

Clause 44 requires the Office of Procurement Regulation toinform the relevant procuring entity of the result of anyinvestigation that is conducted and make the necessaryrecommendations.

Clause 45 requires the Office of Procurement Regulation tomake a special report to Parliament where, during itsinvestigations, it discovers evidence of a criminal offence or breachof duty or misconduct.

Clause 46 prohibits a person from withholding, concealing,destroying or refusing to produce any book, record or documentrequired for the purpose of an investigation.

Clause 47 seeks to provide protection to a person who providesinformation or opinions to the Office of Procurement Regulation.

Clause 48 requires notice of any adverse report about aprocuring entity to be given to that procuring entity before themaking of such a report.

PART VCHALLENGE PROCEEDINGS

Clause 49 provides a supplier or contractor with the right tobring challenge proceedings.

Clause 50 provides for the procedure for the reviewing by theOffice of Procurement Regulation of a decision or action of aprocuring entity.

Clause 51 makes provision for the rights of personsparticipating in challenge proceedings.

Clause 52 provides for certain grounds upon which informationshall not be disclosed in challenge proceedings.

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PART VIDISPOSAL OF PUBLIC PROPERTY

Clause 53 states that the Act for which this is the Bill shallapply to the disposal of stores and equipment of a public body thatare unserviceable, obsolete or surplus.

Clause 54 specifies that a public body must comply withguidelines or handbooks that are issued or approved by the Officeof Procurement Regulation with respect to the retention ordisposal of public property.

Clause 55 provides for the establishment of a disposalcommittee by a public body.

Clause 56 provides for the procedures for the disposal of publicproperty.

Clause 57 prohibits a public body from disposing of publicproperty to an employee of the public body or a member of a boardor committee of the public body.

PART VIIMISCELLANEOUS

Clause 58 makes provision for preventing a supplier orcontractor from participating in procurement proceedings based onan ineligibility list.

Clause 59 prohibits certain conduct, which aims to influence apublic officer in order to gain an advantage or concession.

Clause 60 creates certain offences which involves collusion.Clause 61 sets out penalties for the contravention of the

provisions of the Act for which this is the Bill. Clause 62 empowers the Minister, on the recommendation of

the Office of Procurement Regulation, to make Regulations.Clause 63 repeals the Central Tenders Board Act.Clause 64 provides for the savings of certain procurement

proceedings upon the repeal of the Central Tenders Board Act.

PART VIIITRANSITIONAL

Clauses 65 to 68 provide for the options available to certainpublic officers under the Central Tenders Board and makeprovision for the treatment of such persons upon thecommencement of the Act for which this is the Bill.

Clause 69 provides for the preservation of existingprocurement proceedings and contracts.

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THE PUBLIC PROCUREMENT AND DISPOSAL OFPUBLIC PROPERTY BILL, 2014

Arrangement of Clauses

PART IPRELIMINARY

Clause

1. Short title2. Commencement3. Act inconsistent with Constitution4. Interpretation5. Objects6. Illegality of procurement or disposal7. Application of the Act8. Act binds the State

PART IITHE OFFICE OF PROCUREMENT REGULATION

9. Establishment and incorporation of the Office10. Procurement Board11. Tenure and remuneration of members12. Removal of member13. Functions of the Office14. Powers of the Office15. Meetings16. Committees17. Declaration of interest18. Staff of the Office19. Secondment from and to the service of the Office20. Establishment of pension fund plan21. Funds of the Office22. Accounts and audit23. Exemptions24. Report of the Regulator25. Financial year

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26. Central Depository27. Information on possible forthcoming procurement28. Participation by suppliers or contractors29. Due diligence30. Guidelines and handbooks in relation to public procurement31. Splitting of procurement32. Estimation of the value of procurement33. Cancellation of the procurement34. Rejection of abnormally low submissions35. Acceptance of the successful submission and entry into

force of the procurement contract36. Public notice of the award of a procurement contract or

framework agreement37. Report of procuring entities38. Use of electronic processing system in public procurement39. Confidentiality40. Prohibition of victimization


41. Complaints42. Power to obtain information and documents43. Investigations by the Office44. Outcome of investigation45. Special report46. Restrictions on withholding or concealing47. No breach of duty48. Notice of adverse report


49. Right to challenge and appeal50. Application for review by the Office51. Rights of participants in challenge proceedings52. Grounds for confidentiality in challenge proceedings

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PART VIDISPOSAL OF STORES AND EQUIPMENT OF A PUBLIC BODY

53. Application54. Guidelines and handbooks in relation to retention and

disposal of public property55. Disposal Committee56. Procedure for disposal57. Prohibition of disposal within public body


58. Ineligibility list59. Conduct influencing public officer60. Offence involving collusion61. General offence and penalty62. Regulations63. Chap. 71:91 repeal64. Savings of certain procurement proceedings


65. Options available to public officers66. Preservation and accrual of superannuation benefits67. Payment of superannuation benefits by the Office prior to

the establishment of a pension fund plan68. Payment of superannuation benefits by pension fund plan69. Preservation of existing proceedings and contracts

SCHEDULE I

SCHEDULE II

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BILLAN ACT to provide for public procurement, and for the

retention and disposal of public property inaccordance with the principles of good governance,namely accountability, transparency, integrity andvalue for money, the establishment of the Office ofProcurement Regulation, the repeal of the CentralTenders Board Act, Chap. 71:91 and relatedmatters

[ , 2014]WHEREAS it is enacted by section 13(1) of theConstitution that an Act of Parliament to which thatsection applies may expressly declare that it shall have

Preamble

effect even though inconsistent with sections 4 and 5 ofthe Constitution and, if any Act does so declare, it shallhave effect accordingly:

And whereas it is provided in section 13(2) of theConstitution that an Act of Parliament to which thatsection applies is one the Bill for which has been passedby both Houses of Parliament and at the final votethereon in each House has been supported by the votesof not less than three-fifths of all the members of thatHouse:

And whereas it is necessary and expedient that theprovisions of this Act shall have effect even thoughinconsistent with sections 4 and 5 of the Constitution:

ENACTED by the Parliament of Trinidad and Tobago asfollows:

PART IPRELIMINARY

1. This Act may be cited as the Public Procurementand Disposal of Public Property Act, 2014.

2. This Act comes into operation on such date as isfixed by the President by Proclamation.

3. This Act shall have effect even thoughinconsistent with sections 4 and 5 of the Constitution.

4. In this Act—“bid rigging” means collusion between

persons for the purpose of manipulatingprocurement proceedings;

“Board” means the Board established undersection 10;

“classified information” means informationthat is exempted from disclosure underthis Act, the Freedom of Information Actor any other written law;

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Act inconsistentwith Constitution

Enactment

Short title

Commencement

Interpretation

Chap. 22:02

“committee” means a committee appointed undersection 16;

“disposal of public property” includes thetransfer without value, sale, lease,concession, or other alienation of propertythat is owned by a public body;

“document” includes an electronic document;“electronic means” means the use of

electronic equipment for the processing,including digital compression, andstorage of data which is transmitted,conveyed and received by wire, radio,optical, electromagnetic or any othermeans;

“electronic reverse auction” means an online realtime purchasing technique utilized by aprocuring entity to select the successfulsubmission, which involves the presentationby suppliers or contractors of successivelylowered bids during a scheduled period oftime and the automatic evaluation oftenders;

“framework agreement” means an agreement orother arrangement between one or moreprocuring entities and one or morecontractors or suppliers which establishesthe terms, in particular the terms as to priceand, where appropriate, quantity, underwhich the contractor or supplier will enterinto one or more contracts with the procuringentity during the period in which theframework agreement or arrangementapplies;

“local content” means the local value added togoods, works or services measured as theamount of money or percentage of eachdollar of expenditure remaining in

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Trinidad and Tobago after the production ofthe good or the performance of the work orservice;

“local industry development” includes thoseactivities that serve to enhance local capacityand competitiveness by involvement andparticipation of local persons, firms andcapital market and knowledge transferduring the conduct of the programme ofworks or services that are beingprocured;

“member” means a member of the Board;“Minister” means the Minister with

responsibility for finance;“pre-qualification” means the procedure to

identify, prior to solicitation, suppliers orcontractors who are qualified;

“pre-selection” means the procedure to identify,prior to solicitation, a limited number ofsuppliers or contractors who best meet thequalification criteria for the procurementconcerned;

“private party” means an individual, a bodycorporate, or an unincorporated entityother than a public body;

“procurement” or “public procurement” meansthe acquisition of goods, works or servicesinvolving the use of public money;

“procurement contract” means a contractconcluded between a procuring entity and asupplier or a contractor;

“procurement involving classified information”means procurement in which a procuringentity may be authorized by or under thisAct, the Freedom of Information Act or

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any other written law to take measuresand impose requirements for the protectionof classified information;

“procuring entity” means a public body engagedin procurement proceedings;

“procurement proceedings”, in relation to publicprocurement, includes the process ofprocurement from the planning stage,soliciting of tenders, awarding of contracts,and contract management to the formalacknowledgement of completion of thecontract;

“public body” means—(a) the Office of the President;(b) the Parliament;(c) the Judiciary;(d) a Ministry or a department or

division of a Ministry;(e) the Tobago House of Assembly, or a

division of the Tobago House ofAssembly;

(f) a Municipal Corporation establishedunder the Municipal CorporationsAct;

(g) a Regional Health Authorityestablished under the RegionalHealth Authorities Act;

(h) a statutory body, responsibility forwhich is assigned to a Minister ofGovernment;

(i) a State-controlled enterprise;(j) a Service Commission established

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Chap. 25:04

Chap. 29:05

under the Constitution or otherwritten law; or

(k) a body corporate or unincorporatedentity—

(i) in relation to any functionwhich it exercises on behalf ofthe State; or

(ii) which is established by virtueof the President’s prerogative,by a Minister of Governmentin his capacity as such or byanother public authority;

(l) a body corporate or unincorporatedentity in relation to any function,project, scheme or arrangementwhich involves the use by it, of publicmoney;

“public money” means money that is—(a) received or receivable by a public

body;(b) raised by an instrument from which

it can be reasonably inferred that theState accepts ultimate liability in thecase of default;

(c) spent or committed for futureexpenditure, by a public body;

(d) distributed by a public body to aperson;

(e) raised in accordance with a writtenlaw, for a public purpose; or

(f) appropriated by Parliament;“public-private partnership arrangement”

includes an arrangement between a publicbody and a private party under which—

(a) the private party undertakes to

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perform a public function or provide aservice on behalf of the public body;

(b) the private party receives a benefitfor performing the function orproviding a service, either by wayof—

(i) compensation from a publicfund;

(ii) charges or fees collected bythe private party from theusers of a service provided tothem; or

(iii) a combination of suchcompensation and suchcharges or fees; and

(c) the private party is generally liablefor the risks arising from theperformance of the functiondepending on the terms of thearrangement or the provision ofthe service ;

“public property” means real or personalproperty owned by a public body;

“Regulations” means regulations made undersection 62;

“Regulator” means the person referred to insection 10(1)(a);

“services” means any objects of procurement ordisposal other than goods and works andincludes professional, non-professional andcommercial services as well as goods andworks which are incidental to but notexceeding the value of those services;

“socio-economic policies” means environmental,social, economic and other policies ofTrinidad and Tobago authorized or requiredby the Regulations or other provisions of the

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laws of Trinidad and Tobago to be taken intoaccount by a procuring entity in procurementproceedings;

“solicitation” means an invitation to tender,present submissions or participate inrequest-for-proposals proceedings or anelectronic reverse auction;

“solicitation document” means a documentissued by or on behalf of a procuring entity,including any amendments thereto, that setsout the terms and conditions of theprocurement;

“standstill period” means the period from thedispatch of a notice as required bysection 35(2), during which a procuringentity cannot accept the successfulsubmission and suppliers or contractorscan challenge the decision so notified;

“State-controlled enterprise” means—(a) a company incorporated under the

laws of Trinidad and Tobago which isowned or controlled by the State;

(b) a company incorporated under thelaws of Trinidad and Tobago which isowned or controlled by a companyreferred to in paragraph (a); or

(c) a body corporate or unincorporatedentity which is supported, directly orindirectly, by public money and overwhich the State, a statutory body or acompany referred to in paragraph (a)or (b) is in a position to exercisecontrol directly or indirectly;

“submission” means a tender, a proposal, anoffer, a quotation or a bid referred tocollectively or generically, including, wherethe context so requires, an initial orindicative submission;

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“supplier” or “contractor” means, according tothe context, any party or potential party toprocurement proceedings with a procuringentity;

“sustainable procurement” means a processwhereby public bodies meet their needs forgoods, works or services in a way thatachieves value for money on a long termbasis in terms of generating benefits not onlyto the public body, but also to theeconomy and the wider society, whilstminimising damage to the environment;

“tender security” means a security required fromsuppliers or contractors by a procuring entityand provided to a procuring entity to securethe fulfilment of an obligation and includessuch arrangements as bank guarantees,indemnities, surety bonds, standby lettersof credit, cheques for which a bank isprimarily liable, cash deposits, promissorynotes, bills of exchange and other likeinstruments;

“Tobago House of Assembly” means the TobagoHouse of Assembly established bysection 141A of the Constitution;

“unfulfilled contract” includes a contract that isincomplete, terminated or delayed;

“value for money” includes the valuederived from the optimal balance ofoutcomes and input costs on the basis ofthe total cost of supply, maintenanceand sustainable use;

“works” includes construction andengineering works of all kinds.

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5. (1) The objects of this Act are to promote—(a) the principles of accountability, integrity,

transparency and value for money;(b) efficiency, fairness, equity and public

confidence; and(c) local industry development, sustainable

procurement and sustainable development,in public procurement and the disposal of publicproperty.

(2) A public body shall carry out publicprocurement and the disposal of public property in amanner that is consistent with the objects of this Act.

6. (1) Subject to subsection (2), any procurement ofgoods, works or services or retention or disposal ofpublic property that is not done in accordance with thisAct and any procurement contract or agreement that isnot entered into in accordance with this Act shall bevoid and illegal.

(2) Nothing in subsection (1) shall affect the rightsof an innocent third party.

7. (1) This Act applies to public bodies andpublic-private partnership arrangements.

(2) To the extent that this Act conflicts withan obligation of the State under or arising out ofthe following:

(a) a treaty or other form of agreement towhich Trinidad and Tobago is a partywith one or more States or entitywithin a State;

(b) an agreement entered into by theGovernment of Trinidad and Tobagowith an international financinginstitution; or

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Illegality of procurement or disposal

Application of theAct

Objects

(c) an agreement for technical or othercooperation between the Governmentof Trinidad and Tobago and theGovernment of a foreign State,

the requirements of the treaty or agreement shallprevail except that the procurement of goods,works or services shall be governed by this Actand shall promote the socio-economic policies ofTrinidad and Tobago and shall adhere to theobjects of this Act.

(3) A procuring entity engaged inprocurement proceedings relating to a treaty oragreement referred to in subsection (2)(a) shallcomply with section 29 and submit a report onsuch compliance to the Office.

(4) The Office shall, within twenty-one daysof receiving a report under subsection (3),forward a copy of the report to the Speaker whoshall cause the report to be laid in Parliament atthe earliest opportunity.

8. This Act binds the State.

PART IITHE OFFICE OF PROCUREMENT REGULATION

9. There is hereby established as a body corporatethe Office of Procurement Regulation (hereinafterreferred to as “the Office”).

10. (1) The Office shall be governed by a Boardwhich shall be appointed by the President afterconsultation with the Prime Minister and the Leader ofthe Opposition and shall comprise no less than eightand no more than eleven members as follows:

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Procurement Board

Act binds the State

Establishment andincorporation of theOffice

(a) the Procurement Regulator (hereinafterreferred to as “the Regulator”), who shall—(i) possess a degree from an accredited

University in a field relating toprocurement, finance, economics,law, accounting or an equivalentprofessional qualification inaccounting; and”

(ii) have at least ten years’ experience inmatters relating to procurement,

and who shall be the Chairman;(b) a member with qualifications and experience

in accounting;(c) a member with qualifications and experience

in finance;(d) a member with qualifications and experience

in business management;(e) a member with qualifications and experience

in civil engineering;(f) an Attorney-at-law of at least ten years’

standing; (g) a member with qualifications and experience

in any other field relating to procurement;and

(h) no more than four members whorepresent the interests of thecommunity, women, youth, religion orcivil society.

(2) The President, after consultation with thePrime Minister and Leader of the Opposition shallappoint a member as Deputy Chairman of the Board.

(3) The names of all members of the Board as firstconstituted and every change in the membership of theBoard thereafter shall be published in the Gazette anda daily newspaper circulated in Trinidad andTobago.

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(4) The Office shall have an official seal whichshall be authenticated by the signatures of—

(a) the Regulator or in his absence theDeputy Chairman; and

(b) any other member authorized by theBoard,

and shall be judicially noticed.

11. (1) The Regulator shall be appointed for a term ofseven years and is eligible for reappointment, exceptthat he shall not serve more than two consecutive terms.

(2) The Regulator shall be entrusted withthe day to day management, administration,direction and control of the business of the Officewith authority to act in the conduct of thebusiness of the Office.”

(3) A person who has served as the Regulator fortwo consecutive terms shall not be eligible to become amember.

(4) The appointment of members, other thanthe Regulator, shall be as follows:

(a) four members shall be appointed for aterm not exceeding six years and shallbe eligible for re-appointment for notmore than one consecutive term;

(b) three members shall be appointed fora term not exceeding five years andshall be eligible for re-appointmentfor not more than one consecutiveterm; and

(c) members appointed undersection 10(1)(h) shall be appointed fora term not exceeding four years andshall be eligible for re-appointmentfor not more than one consecutiveterm.

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Tenure and remuneration ofmembers

(5) The appointment of a member shall be byinstrument in writing.

(6) The Regulator may resign his office by letteraddressed to the President.

(7) A member, other than the Regulator, mayresign his office by letter addressed to the Regulatorwho shall immediately cause it to be forwarded to thePresident.

(8) The resignation of the Regulator shall takeeffect from the date of receipt of his letter of resignationby the President, and in the case of a member, otherthan the Regulator, by the Regulator.

(9) In the event of absence or inability of theRegulator from whatever cause arising, the Officemay appoint the Deputy Chairman to exercise thepowers and functions of the Regulator.

(10) The salaries and allowances of the Regulatorand other members shall be determined by theMinister, subject to the approval of Parliament.

(11) All expenses incurred by the Office for thepurposes of this Act shall be a charge on theConsolidated Fund.

12. The President may remove a member from officeupon being satisfied that the member—

(a) is declared to be bankrupt;(b) is incapable of performing the duties of a

member;(c) has neglected his duties or has engaged in

conduct that would bring his office intodisrepute;

(d) has been absent, without the leave of theBoard, from three consecutive meetings of theBoard;

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Removal of member

(e) has been convicted of an offence involvingdishonesty;

(f) has been convicted of an offence under theIntegrity in Public Life Act; or

(g) has been convicted of an offence punishableby imprisonment for one year or more or anoffence under this Act.

13. (1) The functions of the Office are to—(a) establish a comprehensive database of

information on public procurement,including information on tenders received,the award and value of contracts, and suchother information of public interest as theOffice thinks fit;

(b) set training standards, competence levels andcertification requirements to promote bestpractices in procurement;

(c) issue and review guidelines in relation topublic procurement and the retention anddisposal of public property, including modelguidelines for special guidelines undersections 30(1)(b) and 54(1)(b);

(d) prepare, update and issue model handbooks,incorporating standardized biddingdocuments, procedural forms and relevantdocuments for use in public procurement andthe retention and disposal of public property;

(e) approve, in respect of each procuring entity,special guidelines and handbooks in relationto public procurement and the retention anddisposal of public property;

(f) promote the use of technology in publicprocurement and the retention and disposalof public property;

(g) provide best practice advice in the conduct ofprocurement activities, including thepromotion of electronic transactions;

(h) audit and review the system of procurement

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Functions of theOffice

and disposal of public property to ensurecompliance with the objectives of the Act;

(i) harmonize policies, systems and practices inrelation to public procurement activities andthe disposal of public property;

(j) review procurement practices and deliverysystems on an annual basis to identify bestpractices;

(k) determine, develop, introduce, maintain andupdate related system-wide databases andtechnology;

(l) promote the awareness of public bodies andthe public to issues relating to publicprocurement and disposal of public property;

(m) undertake research and surveys with respectto public procurement and disposal of publicproperty;

(n) investigate, on its own initiative or uponcomplaint from any party involved in publicprocurement or disposal of public property orany member of the public, any alleged orsuspected breach of this Act;

(o) act for, in the name and on behalf of the Stateto dispose of real property owned by theGovernment in such manner as theGovernment may consider appropriate anddesirable;

(p) create and publish standard form contractsfor public procurement and disposal of publicproperty;

(q) prepare and maintain a database ofpre-qualified contractors and suppliers;

(r) prepare and maintain a list of pre-qualifiedmediators, arbitrators and experts for thepurposes of alternative dispute resolutionunder this Act; and

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(s) provide advice on best practice on theaggregation of the procurement or disposal ofgoods for the purpose of obtaining value formoney;

(2) In the exercise of its functions, the Officeshall—

(a) act expeditiously and take such other steps asit thinks fit in order to minimize anynegative economic impact arising out of theperformance of its functions; and

(b) not be subject to the direction or control ofany other person or authority in theperformance of its functions, but shall beaccountable to the Parliament.

14. (1) In the performance of its functions, the Officemay—

(a) monitor the procurement of goods, works andservices, and the disposal of public property,by public bodies to ensure compliance withthis Act;

(b) conduct audits and periodic inspections ofpublic bodies to ensure compliance with thisAct;

(c) issue directions to public bodies to ensurecompliance with the Act; and

(d) carry out such other activities and do suchother acts as it considers necessary orexpedient for the carrying out its functions.

(2) No public body or person shall withoutreasonable justification fail to comply with thisAct or any directions issued thereunder.

(3) No finding that a public body or personhas failed without reasonable justification tocomply with a direction issued under this Actshall be made unless reasonable notice has been

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Powers of the Office

given to the public body or person of the allegedfailure and the public body or person has beenallowed full opportunity to be heard either by asenior officer or by an Attorney-at-Law.

(4) At all times the Office shall, in theperformance of its functions and exercise of itspowers, act in an objective and non-discriminatorymanner.

15. (1) The Board shall meet at least once everymonth and as often as is required to effect its business.

(2) The Regulator shall preside and in theabsence of both, the member of the Board electedto preside by the other members present atmeetings of the Board and, in the absence of theRegulator, the Deputy Chairman shall preside.

(3) The quorum of a meeting of the Board shall besix members, including either the Regulator or theDeputy Chairman or the member so elected topreside.

(4) The minutes of each meeting of the Boardshall be kept in proper form and be confirmed at thenext meeting.

(5) The Board may regulate its own proceedings.

16. (1) The Board may appoint such committees as itconsiders necessary.

(2) A committee may—(a) inquire into and advise the Board on any

matter within the scope of the Board’sfunctions;

(b) exercise such of the powers of the Board asthe Office delegates to it in writing; or

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Meetings

Committees

(c) perform such other duties as the Boardassigns to it.

(3) Membership of a committee may includeor consist of persons who satisfy the fit andproper criteria as prescribed by the Regulations,who are not members of the Board, except thatthe chairperson of a committee shall be a memberof the Board.

(4) The Board shall appoint the chairperson of acommittee.

(5) A committee shall be subject to the control ofthe Board and may be discharged or reconstituted atany time by the Board.

(6) A committee may regulate its own procedure,subject to any directions that may be given by the Board.

17. (1) A member of the Board or a committee whohas a direct or indirect interest in a matter underconsideration by the Board or committee shall disclosethe fact of his interest at the earliest opportunityand shall not participate in the consideration of, or voteon, any question relating to the matter.

(2) A member of the Board or a Committee whoknowingly or willfully fails to disclose his interest inaccordance with subsection (1) commits an offence andis liable on summary conviction to a fine of five hundredthousand dollars and imprisonment for one year.

18. (1) The Office shall appoint such staff as itconsiders necessary for the efficient performance of thefunctions of the Office.

(2) The staff of the Office shall be appointed onsuch terms and conditions as the Office may determine.

19

Declaration ofinterest

Staff of the Office

19. (1) A public officer or any person in the employ ofany public body may, with the approval of theappropriate Service Commission or public body andwith the consent of the officer or employed person, beseconded to the service of the Office.

(2) Where any secondment is effected, the Officeshall make, with the appropriate public body, sucharrangements as may be necessary to preserve therights of the officer or employed person tosuperannuation benefits for which the officer oremployed person would have been eligible had thatofficer or employed person remained in the service fromwhich the secondment was effected.

(3) A period of secondment under this sectionshall not exceed five years.

20. (1) The Office shall, within five years of the dateof assent to this Act, establish a pension fund plan.

(2) All staff of the Office shall be members of thepension fund plan.

21. The funds of the Office shall consist of moneysappropriated by Parliament for the purposes of theOffice.

22. Section 116 of the Constitution shall apply to theaccounts of the Office.

23. The Office shall be exempt from stamp duties,corporation taxes, customs duties, value added taxes,motor vehicle taxes and all other taxes, charges, leviesand imposts.

24. (1) The Regulator shall submit his reportsannually to Speaker, the President of the Senateand the Minister.

20

Secondment fromand to the service ofthe Office

Establishment ofpension fund plan

Funds of the Office

Accounts and audit

Exemptions

Report of theRegulator

(2) A report under subsection (1) shall include—(a) a figure representing the total value of

contracts as awarded by public bodies, andanother figure representing the cost of thetotal value of procurement contract variancesfor that year;

(b) the number of unfulfilled contracts awardedby public bodies in respect of procurement;

(c) a summary of transactions in respect of eachpublic body specifying in respect of publicprocurement—

(i) the number of procurement contractsawarded;

(ii) the number of procurement contractsvaried;

(iii) the quantum of those variances;(iv) the number of unfulfilled

procurement contracts and thequantum of cost incurred;

(v) with respect to the procurement for aproject, a brief description, theawardee, the value, the scope ofworks and the expected deliverablesof the project; and

(vi) lessons learnt as a consequence of themanagement of procurementcontracts;

(d) a summary of transactions in respect of eachpublic body concerning the disposal of publicproperty—

(i) in respect of real property, theaddress and other identifying detailsof the property disposed of, includingvalue, to whom it was disposed, dateof disposal, means of disposal andconsideration; and

(ii) in respect of property other than realproperty, details of the property

21

disposed of, including value, to whomit was disposed, means of disposal,and consideration;

(e) details of changes implemented to ensurecurrent best practice for procurement, anddisposal of public property;

(f) the names of public bodies that have failed tocomply with this Act;

(g) a summary of special reports submitted toParliament;

(h) an assessment of the overall performance ofthe procurement system;

(i) a summary of unresolved issues that are to bedealt with; and

(j) any recommendations requiring action on thepart of a procuring entity.

(3) A report under subsection (1) need not includedetails of contracts less than two million dollars orcontracts for the settlement of legal liability other thanthe total number and quantum.

(4) The President of the Senate and theSpeaker shall cause the report to be laid beforethe Senate and the House of Representatives,respectively, at the next sitting of the Senate andthe House of Representatives after the receiptthereof, respectively.

(5) The Minister may, on the recommendationof the Office, vary the amount specified insubsection (3), by Order subject to negativeresolution of Parliament.

25. The financial year of the Board shall be thetwelve-month period ending on 30th September eachyear.

22

Financial year


26. (1) The Office shall establish a database, to beknown as the “Procurement Depository”, to whichsuppliers or contractors can submit information withrespect to, among other things, their qualificationsand experience.

(2) The Procurement Depository shall beaccessible by the public for viewing.

(3) A supplier or contractor who submitsinformation to the Procurement Depository shall beresponsible for ensuring its accuracy.

(4) In conducting its due diligence, pursuant tosection 29(1)(e), a procuring entity may require asupplier or contractor who has submitted information tothe Procurement Depository to confirm the accuracy ofthe information submitted.

27. (1) A procuring entity shall, no later than sixweeks after the approval of the National Budget,publish on its website or in any other electronic format,information regarding all planned procurementactivities for the following twelve months and updatethe information as necessary. A printed copy of theinformation shall be provided upon request andpayment of the prescribed fee.

(2) Where the information referred to insubsection (1) is unavailable or not forthcoming, acomplaint may be made to the Regulator who shallconduct an investigation in accordance withsection 41, and if justified grant an extension oftime.

(3) Publication under this section does not—(a) constitute a solicitation;(b) oblige a procuring entity to issue a

solicitation; or(c) confer any rights on suppliers or contractors.

(4) Subsection (1) shall not apply to aprocuring entity involved in the procurement of

23

ProcurementDepository

Information on possible forthcomingprocurement

goods and services for the purpose of nationalsecurity.

28. (1) A procuring entity may limit participation inprocurement proceedings to promote local industrydevelopment and local content.

(2) A procuring entity, when first soliciting theparticipation of suppliers or contractors, shall declarewhether the participation of suppliers or contractors islimited pursuant to this section and the nature of andreason for the limitation.

(3) A declaration made under subsection (2) shallnot be altered.

(4) A procuring entity that decides to limit theparticipation of suppliers or contractors pursuant to thissection shall include in the record of the procurementproceedings a statement of the reasons andcircumstances on which it relied.

29. (1) A procuring entity shall ensure that suppliersand contractors—

(a) have the legal capacity to enter into theprocurement contract;

(b) are not insolvent, in receivership, bankruptor being wound up, their affairs are not beingadministered by a court or a judicial officer,their business activities have not beensuspended and they are not the subject oflegal proceedings for any of the foregoing;

(c) have not, and their directors or officers havenot, been convicted of any criminal offence;

(d) have fulfilled their obligations to pay allrequired taxes and contributions in Trinidadand Tobago;

(e) have the necessary professional andtechnical qualifications and competence,financial resources, equipment and other

24

Participation by suppliers orcontractors

Due diligence

physical facilities, managerial capability,reliability, experience and personnel toperform the procurement contract; and

(f) meet relevant industry standards.

(2) Subject to the right of suppliers or contractorsto protect their intellectual property or trade secrets, aprocuring entity shall require suppliers or contractors toprovide appropriate documentary evidence or otherinformation to satisfy itself that the suppliers orcontractors are qualified in accordance withsubsection (1).

(3) Any requirement established pursuant to thissection shall be set out in the pre-qualification orpre-selection documents, if any, and in the solicitationdocuments and shall apply equally to all suppliers orcontractors.

(4) A procuring entity shall evaluate thequalifications of suppliers or contractors in accordancewith the qualification criteria specified in subsection (1)and procedures set out in the pre-qualification orpre-selection documents, if any, and in the solicitationdocuments.

(5) Notwithstanding subsection (4), a procuringentity may require the supplier or contractor presentingthe successful submission to certify on oath, thedocumentary evidence provided is true andcorrect so as to demonstrate his qualifications for theparticular procurement.

(6) A procuring entity shall disqualify a supplieror contractor if the information submitted concerningthe qualifications of the supplier or contractor wasmaterially inaccurate or materially incomplete so as toconstitute a misrepresentation.

(7) A procuring entity may disqualify a supplieror contractor ifthe information submittedconcerning the qualifications of the supplier or

25

contractor was inaccurate or incomplete in any respectand the supplier or contractor fails to promptly remedythe inaccuracy or incompleteness upon the request ofthe procuring entity.

(8) A procuring entity may require a supplier orcontractor that was pre-qualified in accordance withthis Act to demonstrate his qualifications again inaccordance with the same criteria used to pre-qualifysuch supplier or contractor.

(9) A procuring entity shall disqualify anysupplier or contractor who, without reasonable cause,fails to demonstrate his qualifications when requestedto do so.

(10) A procuring entity shall promptly notify eachsupplier or contractor who is requested to demonstratehis qualifications again as to whether or not he has doneso to the satisfaction of the procuring entity.

30. (1) A procuring entity shall comply with—(a) such general guidelines in relation to public

procurement as the Office may issue;(b) such special guidelines in relation to public

procurement as the Office may approve forthat procuring entity; and

(c) such handbooks in relation to publicprocurement as the Office may approve forthat procuring entity for the purposes ofensuring compliance with this Act andguidelines under paragraphs (a) and (b).

(2) Special guidelines under subsection (1)(b)—(a) shall be prepared by the procuring entity and

submitted to the Office for its approval; or(b) may provide that general guidelines under

subsection (1)(a) shall apply to a procuringentity subject to such exemptions oramendments as are specified in the specialguidelines.

26

Guidelines andhandbooks in relation to publicprocurement

(3) Handbooks under subsection (1)(c) shall beprepared by the procuring entity and submitted to theOffice for its approval.

31. A procuring entity shall not split procurementrequirements for a given quantity of goods, works orservices to avoid obligations under the Act.

32. (1) A procuring entity shall not divide itsprocurement or use a particular valuation method forestimating the value of procurement so as to limitcompetition among suppliers or contractors or otherwiseavoid its obligations under this Act.

(2) In estimating the value of procurement, aprocuring entity shall include the estimated maximumtotal value of the procurement contract, or of allprocurement contracts envisaged under a frameworkagreement over its entire duration, taking into accountall forms of remuneration.

33. (1) A procuring entity may cancel aprocurement—

(a) at any time prior to the acceptance of thesuccessful submission; or

(b) after the successful submission is acceptedunder the circumstances referred to insection 35(6).

(2) A procuring entity shall not open any tendersor proposals after taking a decision to cancel theprocurement.

(3) The decision of a procuring entity to cancel aprocurement and the reasons for its decision shall beincluded in the record of the procurement proceedingsand promptly communicated to any supplier orcontractor who presented a submission.

(4) A procuring entity shall promptly publish anotice of the cancellation of the procurement in thesame manner and place in which the original

27

Cancellation of theprocurement

Splitting ofprocurement

Estimation of thevalue of procurement

information regarding the procurement proceedings waspublished, and return any tenders or proposals thatremain unopened at the time of the decision to therespective suppliers or contractors.

34. (1) Where a procuring entity is of the opinion thata submission is abnormally low, it shall request, inwriting from the supplier or contractor, details of thesubmission that gives rise to concerns as to the ability ofthe supplier or contractor to perform the procurementcontract.

(2) Where a procuring entity, having taken intoaccount any information provided by the supplier orcontractor following its request under subsection (1) andthe information included in the submission, is still of theopinion that the price, in combination with otherconstituent elements of the submission, is abnormallylow in relation to the subject matter of the procurementand raises concerns with the procuring entity as to theability of the supplier or contractor who presented thatsubmission to perform the procurement contract, theprocuring entity may reject the submission.

(3) The decision of a procuring entity to reject asubmission in accordance with this section, the reasonsfor that decision, and all communications with thesupplier or contractor under this section shall beincluded in the record of the procurement proceedingsand the decision of the procuring entity and the reasonstherefor shall be promptly communicated to therespective supplier or contractor.

35. (1) A procuring entity shall accept the successfulsubmission unless—

(a) the supplier or contractor presenting thesuccessful submission is disqualified inaccordance with section 29;

(b) the procurement is cancelled in accordancewith section 33; or

28

Acceptance of thesuccessfulsubmission andentry into force ofthe procurementcontract

Rejection ofabnormally lowsubmission

(c) the submission found successful at the end ofevaluation is rejected as abnormally lowunder section 34.

(2) A procuring entity shall promptly notify eachsupplier or contractor who presented submissions of itsdecision to accept the successful submission at the endof the standstill period.

(3) The notice referred to in subsection (2) shallcontain, at a minimum, the following information:

(a) the name and address of the supplier orcontractor presenting the successfulsubmission;

(b) the contract price; and(c) the duration of the standstill period as set out

in the solicitation documents.

(4) Subsection (2) shall not apply to awards ofprocurement contracts where a procuring entitydetermines that urgent public interest considerationsrequire the procurement to proceed without a standstillperiod.

(5) The decision of a procuring entity that urgentpublic interest considerations exist and the reasons forthe decision shall be included in the record of theprocurement proceedings.

(6) Upon expiry of the standstill period or, wherethere is none, promptly after the successful submissionis ascertained, a procuring entity shall dispatch thenotice of acceptance of the successful submission to thesupplier or contractor who presented that submission,unless the Office orders otherwise.

(7) Unless a written procurement contract isrequired, a procurement contract in accordance with theterms and conditions of the successful submissionenters into force when the notice of acceptance isdelivered to the supplier or contractor concerned, so,

29

however, that the notice is dispatched while thesubmission is still in effect.

(8) Where the solicitation documents require thesupplier or contractor whose submission has beenaccepted to sign a written procurement contractconforming to the terms and conditions of the acceptedsubmission—

(a) the procuring entity and the supplier orcontractor concerned shall sign theprocurement contract within a reasonableperiod of time after the notice of acceptance isdispatched to the respective supplier orcontractor; and

(b) the procurement contract enters into forcewhen the contract is signed by the respectivesupplier or contractor and by the procuringentity.

(9) Neither a procuring entity nor the respectivesupplier or contractor shall take any action thatinterferes with the entry into force of the procurementcontract or its performance during the time between thedispatch of the notice of acceptance and the entry intoforce of the procurement contract.

(10) If the supplier or contractor whosesubmission has been accepted fails to sign any writtenprocurement contract as required or fails to provide anyrequired security for the performance of the contract, aprocuring entity shall withdraw the award and either—

(a) select the next highest ranked submissionfrom among those remaining in effect, inaccordance with the criteria and proceduresset out in this Act and in the solicitationdocuments; or

(b) terminate the procurement proceedings.

(11) Notices under this section are dispatchedwhen they are promptly and properly addressed orotherwise directed and transmitted to the supplier orcontractor or conveyed to an appropriate authority for

30

transmission to the supplier or contractor by anyreliable means specified in accordance with theRegulations.

36. (1) Upon the entry into force of a procurementcontract or conclusion of a framework agreement, aprocuring entity shall promptly publish on its website orin any other electronic format, notice of the award of theprocurement contract or the framework agreement,specifying the name of any supplier or contractor withwhom the procurement contract or frameworkagreement was entered into, the goods or services to besupplied, the works to be effected and, in the case ofprocurement contracts, the date of the award of thecontract and the contract price.

(2) Where the information referred to insubsection (1) is unavailable, a complaint may be madeto the Regulator.

37. A procuring entity shall submit to the Office nolater than three weeks after the end of each quarter areport of all contracts awarded during the immediatelypreceding quarter.

38. (1) Notwithstanding any other law for carryingout the purposes of this Act, public procurement underthis Act may be undertaken using electronic means.

(2) Nothing in subsection (1) shall affect thevalidity of procurements effected by means that werelawful before the coming into force of this Part.

39. (1) In its communications with suppliers orcontractors or with any person, a procuring entity shallnot disclose any information if non-disclosure of suchinformation is necessary for the protection of essentialsecurity interests of the State or if disclosure of suchinformation would be contrary to law, would impede lawenforcement, would prejudice the legitimate commercialinterests of the suppliers or contractors or would impedefair competition, unless disclosure of that information is

31

Use of electronicmeans in publicprocurement

Report of procuringentities

Confidentiality

Public notice of theaward of a procurementcontract orframeworkagreement

ordered by the court and, in such case, subject to theconditions of such an order.

(2) Other than when providing or publishinginformation pursuant to this Act, a procuring entityshall treat submissions in such a manner as to avoid thedisclosure of their contents to competing suppliers orcontractors or to any other person not authorized tohave access to this type of information.

(3) Any discussions, communications,negotiations or dialogue between a procuringentity and a supplier or contractor shall beconfidential, unless the disclosure is ordered bythe court or required by law.

(4) Subject to subsection (1), in procurementinvolving classified information, a procuring entitymay—

(a) impose on suppliers or contractorsrequirements aimed at protecting classifiedinformation; and

(b) demand that suppliers or contractors ensurethat their sub-contractors, directors, officersand employees comply with the requirementsaimed at protecting classified information.

40. A person shall not be dismissed, suspended,demoted, disciplined, harassed, denied a benefit orotherwise negatively affected because—

(a) he, acting in good faith and on the basis of areasonable belief, has—

(i) notified the Director of PublicProsecutions, the Police, the IntegrityCommission or the Office that hisemployer or any other person hascontravened or is about to contravenethis Act;

(ii) done or stated the intention of doinganything that is required to be done

32

Prohibition ofvictimisation

in order to avoid having any personcontravene this Act; or

(iii) refused to do or stated the intentionof refusing to do anything that is incontravention of this Act; or

(b) his employer or any other person believesthat he will do something described inparagraph (a).


41. (1) The Office may on its own initiative, or shallas a result of a complaint made under this Act,consider, inquire into and investigate any allegedbreach of this Act.

(2) A person who wishes to allege or make acomplaint that—

(a) bid rigging or other forms of collusionbetween all or any of the interested parties toprocurement proceedings has occurred; or

(b) an irregularity in procurement proceedings ora breach of this Act has occurred,

may do so in writing to the Office.

(3) Notwithstanding any other written law, wherea person has a reasonable belief that bid rigging or otherforms of collusion between all or any of the interestedparties to procurement proceedings has occurred, thatperson shall report the matter in writing to the Office.

(4) A person who knowingly and mischievouslymakes, or causes to be made, a false report to the Officeor misleads the Office by giving false information or bymaking false statements or accusations, commits anoffence and is liable on conviction to a fine of five

33

Complaints

hundred thousand dollars and to imprisonment for oneyear.

42. (1) Where the Office considers it necessary ordesirable for the purposes of performing or exercising itsfunctions, powers, or duties under this Act, it may, bywritten notice served on any person, require theperson—

(a) to supply to the Office, within the time and inthe manner specified in the notice, any book,record, document or information specified inthe notice;

(b) to produce to the Office, or to a personspecified in the notice acting on its behalf inaccordance with the notice, any book, record,document or information specified in thenotice within the time and in the mannerspecified in the notice;

(c) if necessary, to reproduce, or assist inreproducing, in usable form, informationrecorded or stored in any book, record ordocument within the time and in the mannerspecified in the notice; or

(d) to appear before the Office, or a specifiedperson, at a time and place specified in thenotice to provide information, either orally orin writing, and produce any book, record ordocument specified in the notice.

(2) Information supplied in response to a noticeunder subsection (1)(d) shall, if given in writing, besigned in the manner specified in the notice.

(3) If a book, record or document is produced inresponse to a notice under subsection (1), the Office, orthe person to whom the book, record or document isproduced may examine and make copies of the book,record or document or extracts thereof.

34

Power to obtaininformation anddocuments

(4) The Office may require a person to give orallyor in writing, information on oath or affirmation andmay administer an oath or affirmation at any place.

(5) A person who is required to provideinformation under this section may be represented bycounsel and may claim any privilege to which the personis entitled.

(6) Where a person who is required to appearbefore the Office or give information fails or refuses toappear or provide information without lawfuljustification, the Office may make an application to theHigh Court to compel the person to do so.

43. (1) Any officer in the service of the Office andauthorised by the Regulator in writing (hereinafterreferred to as an “authorised officer”) may, for thepurpose of conducting an investigation into any allegedor suspected breach of this Act—

(a) examine and inquire into the affairs of apublic body or person in respect of whom theinvestigation is being conducted;

(b) examine and make copies of, or remove fromthe premises, all such books, records anddocuments or other things relating to thesubject of the investigation, whether or notthey are in the possession or control of theperson in respect of whom the investigation isordered or of any other person; or

(c) enter the premises of a public body or personduring normal business hours or pursuant toan order under subsection (3).

(2) Any book, record or document removed undersubsection (1)(b) shall be returned to the public body orperson from whom or to the premises from which it wasremoved as soon as practicable.

(3) An authorized officer shall not enter thepremises of a public body or person, unless the

35

Investigations by theOffice

Office first obtains, on an ex parte application to aJudge of the High Court, an order authorizinghim to enter the premises to conduct anexamination under subsection (1).

(4) An authorized officer shall provide the Officewith a full and complete written report of theinvestigation including any transcript of statementsand any material in his possession relating to theinvestigation.

44. After conducting an investigation under this Act,the Office shall without delay, in writing, inform theaffected parties and the Minister, the ChiefSecretary or public official having responsibility forthat body, of the result of that investigation and makesuch recommendations as it considers necessary inrespect of the matter which was investigated.

45. Where after the conduct of an investigation,the Office is satisfied that there are reasonablegrounds for suspecting that an offence has beencommitted, it shall make a report to the Directorof Public Prosecutions who may take such actionas he thinks appropriate.

46. No person shall withhold, conceal, destroy orrefuse to produce any book, record or document requiredfor the purpose of an examination or investigationunder this Act.

47. Notwithstanding any other written law, no personshall be regarded as having breached any duty to whichhe may be subject by reason of his communication ingood faith to the Office, of any information or opinion ona matter which is relevant to any function of the Officeunder this Act, whether or not in response to a requestmade by the Office.

48. The Office shall not make a report whichconcludes that a public body or a person has failed

36

Notice of adversereport

Restrictions onwithholding orconcealing

No breach of duty

Outcome ofinvestigation

Special report

without reasonable justification to fulfil a duty orobligation under this Act unless reasonable notice hasbeen given to the public body or person of the allegedfailure and the public body or person has been allowedfull opportunity to be heard either in person or by anAttorney-at-law.


49. (1) A supplier or contractor may bring challengeproceedings where it is alleged that—

(a) a procuring entity made a decision or tookaction that is not in compliance with this Act;and

(b) the supplier or contractor has suffered or islikely to suffer loss or injury because of thedecision or action of the procuring entity.

(2) Challenge proceedings may be made by way ofan application for review by the Office under section 50.

(3) Subject to section 52, all hearings under thisPart shall take place in public.

50. (1) A supplier or contractor may apply to theOffice for review of a decision or an action taken by aprocuring entity in the procurement proceedings.

(2) Applications for review shall be submitted tothe Office in writing within the following time periods:

(a) applications for review of the terms ofsolicitation, pre-qualification or pre-selectionor of decisions or actions taken by a procuringentity in pre-qualification or pre-selectionproceedings, prior to the deadline forpresenting submissions; or

(b) applications for review of other decisions oractions taken by a procuring entity in theprocurement proceedings—

37

Right to challengeand appeal

Application forreview by the Office

(i) within the standstill period appliedpursuant to section 35(2); or

(ii) where no standstill period has beenapplied, within seven working daysafter the publication of the notice ofthe decision or action that is taken inaccordance with this Act.

(3) Within three days of receiving an applicationfor review, the Office shall publish a notice of theapplication in at least two newspapers in dailycirculation in Trinidad and Tobago and on its website orany other electronic format.

(4) The Office may, within three days of thereceipt of an application for review—

(a) order the suspension of the procurementproceedings at any time before the entry intoforce of the procurement contract; or

(b) order the suspension of the performance of aprocurement contract or the operation of aframework agreement that has entered intoforce,

if and for as long as it finds such a suspension necessaryto protect the interests of the applicant.

(5) Promptly upon receipt of an application forreview, the Office shall notify the procuring entity of theapplication and upon receipt of the notice, the procuringentity shall provide the Office with effective access to alldocuments in its possession relating to the procurementproceedings, in a manner appropriate to thecircumstances.

(6) Within seven days of receiving an applicationfor review, the Office shall notify the procuring entityand all qualified suppliers and contractors of theapplication and its substance and of its decision onsuspension pursuant to subsection (4).

38

(7) Where the Office decides to suspend theprocurement proceedings, the performance of aprocurement contract or the operation of a frameworkagreement, as the case may be, it shall specify theperiod of the suspension and where it decides not tosuspend the procurement proceedings, it shall providethe reasons for its decision to the applicant and to theprocuring entity.

(8) The Office may dismiss an application andshall lift any suspension applied, where it is of theopinion that the application is manifestly without meritor was not presented in compliance with the deadlinesset out in subsection (2).

(9) The Office shall promptly notify the applicant,the procuring entity and all qualified suppliers andcontractors in the procurement proceedings of thedismissal and the reasons therefor and that anysuspension in force is lifted and such a dismissalconstitutes a decision on the application.

(10) In making its decision with respect to anapplication that it has entertained, the Office may takeone or more of the following actions, as appropriate:

(a) prohibit a procuring entity from acting in amanner, or taking a decision or following aprocedure, that is not in compliance with thisAct;

(b) require a procuring entity that has acted orproceeded in a manner that is not incompliance with the provisions of this Act toact, to take a decision or to proceed in amanner that is in compliance with theprovisions of this Act;

(c) confirm a decision of a procuring entity;(d) overturn the award of a procurement

contract or a framework agreement thatentered into force in a manner that is not incompliance with this Act and, if notice of the

39

award of the procurement contract or theframework agreement has been published,direct that the notice of the overturning of theaward be published;

(e) direct that the procurement proceedings beterminated;

(f) dismiss the application;(g) require the payment of compensation for any

reasonable costs incurred by the supplier orcontractor submitting an application as aresult of an act or decision of, or procedurefollowed by, a procuring entity in theprocurement proceedings that is not incompliance with the provisions of this Act,and for any loss or damages suffered, whichshall be limited to the costs of the preparationof the submission or the costs relating to theapplication, or both; or

(h) take such other action as is appropriate in thecircumstances.

(11) The decision of the Office undersubsection (10) shall be issued within twenty workingdays after receipt of the application and the Office shallimmediately thereafter communicate its decision to theprocuring entity, to the applicant, to all otherparticipants in the application for review and to allother participants in the procurement proceedings andall persons shall comply with the decision and directiveof the Office.

(12) The Office shall give all its decisions andactions taken in writing and shall, no more than twentyworking days after the making of its decision, providewritten reasons for the decision and action taken andthey shall promptly be made part of the record of theprocurement proceedings, together with the applicationreceived by the Office under this section.

40

51. (1) Any supplier or contractor participating in theprocurement proceedings to which the applicationrelates, as well as any public body whose interests areor could be affected by the application, shall have theright to participate in challenge proceedings under thisPart.

(2) A supplier or contractor who is notified of anapplication for review and who fails to participate inproceedings relating to the application is barred fromsubsequently challenging the decisions or actions thatare the subject matter of the application.

(3) The participants in challenge proceedingsunder this Part shall have the right to—

(a) be present, represented and accompanied atall hearings during the proceedings;

(b) be heard;(c) present evidence, including witnesses; and(d) seek access to the record of the challenge

proceedings subject to section 52.

52. No public hearing for the purpose of challengeproceedings shall take place and no information shall bedisclosed in challenge proceedings if it would—

(a) impair the protection of essential securityinterests of the State;

(b) be contrary to law;(c) impede law enforcement;(d) prejudice the legitimate commercial interests

of the suppliers or contractors; or(e) impede fair competition.

41

Rights ofparticipants inchallengeproceedings

Grounds forconfidentiality inchallengeproceedings

PART VIDISPOSAL OF STORES AND EQUIPMENT OF A PUBLIC BODY

53. This Part applies with respect to the retentionand disposal of stores and equipment of a public bodythat are unserviceable, obsolete or surplus.

54. (1) A public body shall comply with—(a) such general guidelines in relation to the

retention and disposal of stores andequipment of a public body as the Office mayissue;

(b) such special guidelines in relation to theretention and disposal of stores andequipment of a public body as the Office mayapprove for that public body; and

(c) such handbooks in relation to the retentionand disposal of stores and equipment of apublic body as the Office may approve forthat public body for the purposes of ensuringcompliance with this Act and guidelinesunder paragraphs (a) and (b).

(2) Special guidelines under subsection (1)(b)—(a) shall be prepared by the public body and

submitted to the Office for its approval; and(b) may provide that general guidelines under

subsection (1)(a) shall apply to a public bodysubject to such exemptions or amendments asare specified in the special guidelines.

(3) Handbooks under subsection (1)(c) shall beprepared by the public body and submitted to the Officefor its approval.

55. A public body shall establish a disposal committeecomprising not less than three officers for the purpose ofrecommending the best method of disposing ofunserviceable, obsolete or surplus stores or equipment.

42

Application

Guidelines andhandbooks inrelation to retentionand disposal ofpublic property

Disposal Committee

56. (1) A public body shall refer all matters relatingto the disposal of unserviceable, obsolete or surplusstores or equipment to its disposal committee.

(2) A public body shall comply with subsection (1)within a reasonable time after the stores or equipmentbecome unserviceable, obsolete or surplus.

(3) Within fourteen days after receiving therecommendations of the disposal committee, theaccounting officer shall give the committee a writtennotice as to whether the accounting officer accepts orrejects the recommendations of the committee andwhere the accounting officer rejects therecommendations, he shall include in the notice writtenreasons for the rejection.

(4) If the accounting officer accepts therecommendations of the disposal committee, the storesand equipment shall be disposed of in accordance withthose recommendations.

(5) If the accounting officer rejects therecommendations of the disposal committee, he shall,after consultation with the minister with responsibilityfor the public body, determine the manner in which thestores or equipment shall be disposed and give theOffice a copy of the notice under subsection (4) andinform the Office, in writing, of his decision under thissubsection and his reasons therefor.

57. A public body shall not dispose of unserviceable,obsolete or surplus stores and equipment to anemployee of the public body or a member of a board orcommittee of the public body except as expresslyallowed under Regulations.

43

Procedure fordisposal

Prohibition ofdisposal withinpublic body


58. (1) For the purposes of this section—“ineligibility list” means a list of suppliers or

contractors who shall not participate inprocurement proceedings;

“senior officer” means a managing director, chiefexecutive officer, chief operating officer,deputy managing director, president,vice-president, secretary, treasurer, chieffinancial officer, financial controller, generalmanager, deputy general manager, corporatesecretary, chief accountant, chief auditor,chief investment officer, chief complianceofficer or chief risk officer; and

“supplier or contractor” includes any person whois a director, manager, senior officer, partneror other similar officer or any person whopurports to act in such a capacity.

(2) The Office shall be responsible for preparingand maintaining an ineligibility list in accordance withthis section.

(3) The Office may add a supplier or contractor tothe ineligibility list where the supplier or contractor—

(a) consistently fails to provide satisfactoryperformance;

(b) is found to be indulging in corrupt orfraudulent practices; or

(c) is convicted of an offence under this Act.

(4) The Minister, on the advice of the Office, maymake Regulations to specify the mechanism andmanner for adding a supplier or contractor to theineligibility list, including the procedure for removing asupplier or contractor from an ineligibility list.

44

Ineligibility list

(5) A supplier or contractor shall be accorded anadequate opportunity to be heard and to makerepresentation before he is added to the ineligibility listpursuant to this section.

(6) Where a supplier or contractor is added to theineligibility list pursuant to this section—

(a) any information relating to the supplier orcontractor that is stored in the CentralDepository shall be removed; and

(b) the fact of the addition of the supplier orcontractor to the ineligibility list shall bepublished and communicated to all publicbodies.

59. (1) For the purposes of this section, “associate”,when used to indicate a relationship with any person,means—

(a) an entity of which that person beneficiallyowns or controls, directly or indirectly,either shares or securities currentlyconvertible into shares, carrying more thantwenty per cent of the voting rights;

(b) a partner of that person acting on behalf ofthe partnership of which they are partners;

(c) a trust or estate, in which that person hasa substantial beneficial interest or inrespect of which he serves as a trustee,legal representative or in a similar capacity;

(d) a spouse or child of that person; or(e) a relative of that person if that relative has

the same residence as that person.

(2) No person shall, with intent to gaining anadvantage or concession for himself or any otherperson—

(a) offer—(i) any member or an associate of a

member of a procuring entity;

45

Conduct influencingpublic officer

(ii) any consultant or an associate of anyconsultant providing services to aprocuring entity; or

(iii) any person or an associate of anyperson providing services to aprocuring entity,

a gift of money or other valuable thing; or(b) approach—

(i) any member or an associate of amember of a procuring entity;

(ii) any consultant or an associate of anyconsultant providing services to aprocuring entity; or

(iii) any person or an associate of anyperson providing services to aprocuring entity,

with respect to any matter that is before thatprocuring entity or that is expected to comebefore that procuring entity.

(3) No member, officer or employee of a publicbody shall accept a gratuity in any form, any offer ofemployment, service or any other thing of value as aninducement with respect to an act or decision of, orprocedure followed by, the public body in connectionwith any procurement proceedings and a public bodyshall promptly reject a tender of any supplier orcontractor who gives, agrees to give or offers directly orindirectly, any such inducement.

(4) A procuring entity shall not procure goods,works or services from a member of its staff or a personwho has direct influence on the decision of a procuringentity.

(5) A procuring entity shall not include in asolicitation document any condition or specificationwhich is likely to favour a particular supplier orcontractor.

46

(6) A member of staff of a procuring entity or aperson with direct influence on the decisions of aprocuring entity shall declare any interest that he mayhave in any tender and shall, so far as possible, recusehimself from the proceedings.

(7) Where a procuring entity is satisfied that aninducement was offered, or any corrupt, fraudulent,collusive, coercive or obstructive practice was carriedout, in relation to a tender or proposal, the procuringentity shall reject or revoke the tender or proposal andreport the matter to the Office for appropriate action.

(8) A supplier or contractor whose tender orproposal is rejected or revoked under subsection (7)shall be added to the ineligibility list, pursuant tosection 58, for a period of ten years following the date ofrejection or revocation of his tender or proposal.

(9) The Office shall notify, in writing, all publicbodies of the disqualification of any supplier orcontractor under this section.

(10) A person who contravenes this sectioncommits an offence and is liable on conviction to a fineof one million dollars and five years’ imprisonment.

60. (1) A person who—(a) is involved in or participates in bid rigging; or(b) directly or indirectly influences in any

manner or attempts to influence in anymanner any procurement proceedings inorder to obtain an unfair advantage in theaward of a procurement contract,

commits an offence and is liable to a fine of five milliondollars and imprisonment for ten years.

(2) A person who alters any procurementdocument with intent to influence the outcome ofprocurement proceedings commits an offence and isliable to a fine of two million dollars and imprisonmentfor seven years.

47

Offence involvingcollusion

61. (1) Any person who contravenes a sectionreferred to in the first column of Schedule IIcommits an offence and is liable on conviction tothe penalty specified in the second column of thatSchedule.

(2) For the purpose of this Act, a public bodyshall appoint or designate a procurement officerwho shall be responsible for public procurementand the disposal of public property for that body.

(3) A reference in this Act to the commissionof an offence by a public body shall be construedas a reference to the commission of the offenceby the procurement officer referred to insubsection (2) or an officer who purports to act insuch capacity, if it is proved that:—

(a) the offence was committed with hisdirect consent or connivance; or

(b) he, with knowledge, did not exercisereasonable diligence to prevent thecommission of the offence.

(4) No prosecution of an offence under thisAct may be instituted without the written consentof the Director of Public Prosecutions.

62. No personal liability shall attach to anymember of the Board, a committee or the staff ofthe Office or to any authorized officer foranything done, omitted or permitted in the courseof the operations of the Office, unless it is shownthat the act or omission was wreckless or in badfaith.”

48

General offence andpenalty

Regulations

63. (1) The Minister may, on the recommendation ofthe Office, make Regulations to give effect to theprovisions of this Act, including regulations with respectto—

(a) the conduct of challenge proceedings underPart V; and

(b) the addition to or removal from anineligibility list under section 58.

(2) Regulations made under this section mayprovide that the contravention of any regulationconstitutes an offence and may prescribe penalties forany offence not exceeding a fine of one million dollarsand imprisonment for five years.

(3) Regulations made under this section shall besubject to affirmative resolution of Parliament.

64. (1) The Central Tenders Board Act is repealedsave that any actions in respect of a procurement ordisposal of public property which had commenced beforethe proclamation of this Act shall proceed as if theCentral Tenders Board Act continues to have effect, anda reference to the Director of Contracts or the CentralTenders Board Act shall be construed as a reference tothe Office or this Act as the context requires.

(2) Section 28 of the Tobago House ofAssemblyAct is repealed.

65. Where any procurement proceeding is in forceupon the commencement of this Act, it shall be deemedto be in conformity with this Act and to the extent thatthe transaction would have been valid prior to thecommencement of this Act, it shall be deemed to be sovalid for the purposes of this Act.

49

Chap. 71:91 repelaed

Savings of certainprocurementproceedings

Repeal


66. (1) This section applies to an officer who, on thedate of assent of this Act—

(a) holds a permanent appointment to; or(b) holds a temporary appointment to, and has

served at least two continuous years in, a public office specified in the Schedule.

(2) A person to whom this section applies may,within three months of the date of assent of this Act,exercise one of the following options:

(a) voluntary retire from the Public Service onterms and conditions agreed between him orhis appropriate recognized association andthe Chief Personnel Officer;

(b) transfer to the Office with the approval of thePublic Service Commission on terms andconditions no less favourable than thoseenjoyed by him in the Public Service; or

(c) remain in the Public Service provided that anoffice commensurate with the office held byhim in the Public Service prior to the date ofthe assent of this Act, is available.

67. The superannuation benefits which haveaccrued to a person who exercises the option undersection 65(2)(b) shall be preserved at the date of hisemployment by the Office and such person shallcontinue to accrue superannuation benefits under thePensions Act up to the date of the establishment of thepension fund plan on the basis of salary applicable tothe office which he held immediately prior to hisemployment by the Office under section 65.

50

Schedule

Preservation andaccrual ofsuperannuationbenefits

Options available topublic officers

68. (1) Where a member of staff of the Office whoexercises the option referred to in section 65(2)(b) dies orretires prior to the establishment of the pension fundplan, and at the date of his death or retirement was inreceipt of a salary higher than that referred to insection 66, the superannuation benefits payable to hisestate or to him shall be based on the higher salary.

(2) The difference between the superannuationbenefits payable on the basis of the higher salary andthose payable under the Pensions Act on the basis of thesalary referred to in section 66, shall be paid by theOffice.

69. (1) Where a member of staff of the Office whoexercises the option referred to in section 65(2)(b) retiresor dies and is a member of the pension fund plan, heshall be paid superannuation benefits by the pensionfund plan at the amount which when combined with thesuperannuation benefits payable under section 66 is theequivalent to the benefits based on his pensionableservice in the Public Service combined with his servicein the Office and calculated at the pensionable salaryapplicable to him on the date of his retirement or death.

(2) For the purposes of this section, “pensionablesalary” has the meaning assigned to it by the pensionfund plan.

70. Nothing in this Act affects the validity of anyproceedings commenced, or contract entered into, beforethe commencement of this Act, but if this Act wouldhave been applicable to the proceedings or the contractif the proceedings had commenced, or the contract hadbeen entered into after the commencement of this Act,the conduct of the proceedings and the performance ofthe contract shall, from the commencement of this Act,be subject to such directions as the Office may issueunder section 14(1)(c) for the purposes of achieving theobjectives of this Act.

51

Payment ofsuperannuationbenefits by pensionfund plan

Preservation ofexisting proceedingsand contracts

Payment ofsuperannuationbenefits by the Officeprior to theestablishment of apension fund plan

SCHEDULE I[Section 65(1)]

Public Offices of the Central Tenders BoardDirector of ContractsDeputy Director of ContractsAssistant DirectorAdministrative Officer IV Administrative Officer II Contracts Officer IIIContracts Officer IIContracts Officer IClerk IVAccounting AssistantClerk IIIClerk IIClerk I Clerk Stenographer IVClerk Stenographer IIIClerk Stenographer I/IIClerk TypistsVault Attendant Messenger II Messenger IMaid ICleaner IChaffeur IEstate ConstableArchitect IICivil Engineer IIMechanical EngineerQuantity Surveyor IIEconomist I Quantity Surveyor Assistant IEngineering Assistant IIDraughtsman I

52

SCHEDULE II

OFFENCES AND PENALTIES

Passed in the Senate this 11th day of June, 2014.

Clerk of the Senate

IT IS HEREBY CERITIFED that this Act is one the Billwhich has been passed by the Senate and at the finalvote thereon in the Senate has been supported by thevotes of not less than three-fifths of all the members ofthe Senate, that is to say, by the votes of 28 Senators.

Clerk of the Senate

53

SECTION OFFENCE SPECIFIED PENALTY31 Splitting of procurement Summary Conviction-$500,000

and imprisonment for oneyear

39 Failure of procuringentity to comply withrequirements with respectto the confidentiality ofinformation

Summary Conviction-$500,000and imprisonment for one

year

40 Prohibition of victimisation Summary Conviction-$500,000and imprisonment for one

year41 Failure of a person to report

instances of collusionSummary Conviction-$500,000

and imprisonment for oneyear

46 Concealing or destroyinginformation required for aninvestigation

Indictable - $5 Million and10 years imprisonment

52 Failure to comply withrequirements with respectto confidentiality in chal-lenge proceedings

Summary Conviction-$500,000and imprisonment for one

year

I confirm the above.

President of the Senate

Passed in the House of Representatives this day of, 2014.

Clerk of the House

IT IS HEREBY CERITIFED that this Act is one the Billwhich has been passed by the House of Representativesand at the final vote thereon in the House has beensupported by the votes of not less than three-fifths of allthe members of the House, that is to say, by the votesof members of the House.

Clerk of the House

I confirm the above.

Speaker

54

No. 2 of 2014

FOU

RTH

SESSIO

NT

EN

TH

PA

RL

IAM

EN

T

RE

PUB

LIC O

FTR

INID

AD

AN

D TO

BA

GO

BIL

LA

NA

CT

to provide for public procurement, and

for the

retention and

disposal of

publicproperty, in accordance w

ith the principles ofgood

governance, nam

ely accountability,

transparency, integrity and value for money,

the establishm

ent of

the O

ffice of

Procurement R

egulation, the repeal of theC

entral Tenders Board A

ct, Chap. 71:91 and

related matters

Received and read theFirst tim

e ...............................................

Second time ...........................................

Third time ..............................................

Documents

The Public Procurement and Disposal of Public Property Bill, … · 2014-07-14 · THE PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC PROPERTY BILL, 2014 Arrangement of Clauses PART I