The Office of Procurement Regulation

Trinidad & tobago

image1

Frequently Asked Questions (FAQs)

Click the "Download FAQ Sheets" button to download all FAQs or scroll down to view the information by category.

1) PROCUREMENT and DISPOSAL ADVISORY COMMITTEE (PDAC)

 Question #1.1:  Will the composition of Procurement and  Disposal  Advisory Committee (PDAC) vary according to subject matter or are the appointments permanent?  

                                                                            

Answer#1.1 : The PDAC should consist of a minimum of three (3) persons. The OPR is suggesting (at a minimum) the following composition:

(a) Corporate Secretary/Head of Legal;

(b) Head of Finance; and

(c) Subject Matter Expert.


The Head of Legal and the Head of Finance may be established as permanent members of the PDAC. The third member of the PDAC would be the subject matter expert and will vary based on the procurement activity being considered.


The public body should establish alternate members (at Managerial levels) in instances where there may be a conflict of interest. If the public body does not have the requisite capabilities, that public body may seek assistance from any other public body or an external organisation.


A public body can expand the composition or membership of its PDAC to the specific needs of the entity. Or note, the public body’s handbooks and guidelines should state clearly the composition of the PDAC that it will adopt.

  ------------------------------------------------------------------------------------------------

                                                                               

Question#1.2:  With reference to the recommendation that legal be a permanent member of the PDAC, is it a conflict of interest having that said person who would have advised on and drafted contracts also be a member of PDAC?

                                                         

Answer#1.2:  Where a conflict of interest may arise, the public body must  elect an alternate member of the Corporate Secretariat/Legal Department to sit on the PDAC.


The OPR recommends that the Legal representative be the chairperson of the PDAC

-------------------------------------------------------------------------------------------------

                                                                             

Question #1.3: Is the subject matter expert developing the evaluation criteria and approving the evaluation reports as a member of PDAC?

                                                   

Answer #1.3 : The PDAC does not approve evaluation reports or recommendations for awards. PDAC is a procedural safeguard set up to review and ensure that the evaluation committee followed the established procedures outlined in the public body’s approved Handbooks and Guidelines as well as the solicitation documents. Following the review, the PDAC will make a recommendation to the Accounting Officer, who is responsible for approval. 


To ensure that there is adequate separation of duties the subject matter expert elected by the public body to sit on the PDAC should be different from the subject matter expert sitting on the evaluation committee and who would have assisted in the development of the evaluation criteria.

-------------------------------------------------------------------------------------------------

                                                                             

Question #1.4: If there is only one legal representative, can they be on both the evaluation committee and the PDAC? If no, which of the two committees should they be placed in?

                                                                            

 Answer #1.4: The OPR recommends that public bodies that do not possess the requisite internal capabilities (more particularly in the high-risk/high-value contracts) should source the required competency from another public body or in the case of high value contracts, the public body may need to outsource these services and bring in persons with the relevant capabilities

-------------------------------------------------------------------------------------------------

                                                                        

Question #1.5:  Can members who sit on the Disposal Committee also sit on PDAC?

                                                                           

Answer #1.5: Persons sitting on that Disposal Committee should not sit on the PDAC. This is to ensure that there is a segregation of duties and that internal controls are maintained.


Of note, the Disposal Committee and the PDAC are two separate Committees. The Disposal Committee acts as an operational committee responsible for recommending the best method of disposing of unserviceable, obsolete or surplus stores or equipment to the ‘Named’ Procurement Officer who subsequently makes this recommendation to the Accounting Office via the PDAC (who acts as an advisory committee to the Accounting Officer).

-------------------------------------------------------------------------------------------------

                                                                             

Question #1.6: Who selects the PDAC committee?                                                                       

 Answer #1.6: The Accounting Officer or equivalent selects the members of PDAC.

-------------------------------------------------------------------------------------------------

                                                                             

Question #1.7 : Should every Division within the Tobago House of Assembly (THA) establish their own PDAC or should there be one across the THA as a whole and is there a stipulated time one should be a member on these committee?

                                                                             

Answer #1.7: The THA or a division of the THA is identified as a public body under section 4 of The Act. As such, the THA and the divisions of the THA ought to have a ‘Named’ Procurement Officer per entity and should therefore also have a PDAC. If the Assembly decides to have one ‘Named’ Procurement Officer then that person should specifically be named as the  Procurement Officer for THA and the divisions of THA. Further, if a public entity requires time limits for the membership of the PDAC, the public body must state these time limits in its Handbooks and Guidelines to be approved by the OPR.

-------------------------------------------------------------------------------------------------

2) OFFENCES AND PENALTIES

 Question #2.1:  Can you clarify if the penalties attached when breaching the Act are attached to the Procurement Officer alone?

                                                                            

Answer#2.1 : Section 61(3) of the Public Procurement and Disposal of Public Property Act 2015 (as amended) states that ‘ a reference in this Act to the commission of an offence by a public body shall be construed as a reference to the commission of an offence by the procurement officer referred to in subsection (2) or an officer who purports to act in such capacity, if it is proved that –

(a) the offence was committed with his direct consent and connivance; or

(b) he, with knowledge, did not exercise reasonable diligence to prevent the commission of the offence.


Any breach under the Act is construed as a breach committed by the Procurement Officer or an officer intending to act in such capacity. Of note, the breaches also apply to other parties involved in the splitting of contracts, failure of the procuring entity to comply with confidentiality requirements, concealing or destroying information required for an investigation and failure of a person to report instances of collusion.


Therefore, the Procurement Officer has a significant responsibility under the Act, but any person who purports to act in the capacity of the Procurement Officer will be held responsible.

 ------------------------------------------------------------------------------------------------

                                                                               

Question#2.2:  Is responsibility assigned to a specific person for the keeping of procurement documents for auditing purposes? What is the result of non-production of

documents and how does the OPR determine who is liable if the said documents are not produced?

                                                         

Answer#2.2:  Section 46 of the Act states that ‘No person shall withhold, conceal, destroy or refuse to produce any book, record or document required for the purpose of an examination or investigation under this Act. 


The Procurement Officer and the Accounting Officer are responsible for ensuring that the records for procurement proceedings are maintained for audit purposes. Therefore your document management system should be robust and files should be maintained both physically and electronically. 


Of note Offences and Penalties (Schedule 1) states that concealing or destroying information required for an investigation carries on conviction on Indictment, a penalty of five (5) million dollars and ten (10) years imprisonment.


The Procurement Officer will be accountable for securing the procurement proceedings documents.

 ------------------------------------------------------------------------------------------------

                                                            

Question #2.3:  Are there any provisions under The Act to address breaches by Suppliers/Contractors?

                                                   

Answer #2.3 :  Section 59 of the Act addresses conduct influencing public officers. Specifically, section 59(7) states that ‘where a procuring entity is satisfied that an inducement was  offered, or any corrupt, fraudulent, collusive, coercive or obstructive practice was carried out in relation to a tender or proposal, the procuring entity shall reject or revoke the tender or proposal and report the matter to the Officer for appropriate action’. Further, s 59(8) provides that a supplier or contractor whose tender or proposal has been rejected or revoked under s59(7), shall be added to the ineligibility list pursuant to s58, for a period of ten (10) years following the date of rejection or revocation of his tender or proposal.


Any persons who contravene section 59 commits an offence and is liable on conviction to a fine of one (1) million dollars and five (5) years’ imprisonment.

------------------------------------------------------------------------------------------------

                                                                             

Question #2.4: How should the Procurement Officer treat with restricting an award of a

contract to suppliers/contractors based on instructions?

                                                                            

 Answer #2.4:  The Act defines bid rigging as ‘ collusion between persons for the purpose of manipulating the proceedings’.


As such, the Procurement Officer is strongly advised against manipulating any public procurement or disposal process to achieve a particular outcome.


In accordance with Section 60 of the Act, a person who is involved in or participates in bid rigging; or directly or indirectly influences in any manner or attempts to influence in any manner any procurement proceedings in order to obtain a fair advantage in the award of a procurement contract commits an offence and is liable to a fine of five (5) million dollars and ten (10) years imprisonment.

------------------------------------------------------------------------------------------------

                                                                        

Question #2.5:  With reference to estimation and value of procurement, Section 32(1) of the Act,

what exactly is splitting of procurement?

                                                                           

Answer #2.5: According to section 27 (1) (a) of the Act a procuring entity shall publish on its website or any other electronic format, information regarding all planned procurement activities for the following twelve months, no later than six (6) weeks after the approval of the National Budget. 


Therefore, you are required to indicate in your plan your various procurement activities to be executed in the said period based on allocated funding and your strategic objectives. 


It is important in the the planning process to develop a reasonable estimate of the value of your procurement. Additionally you should not divide the  procurement to deliberately limit competition and/or avoid obligations under the Act. If this is done it is considered splitting of procurement and will be subjected to - investigation by the Office. 


Offences and Penalties (Schedule 1) - Splitting of Procurement carries on summary conviction a fine of Five Hundred Thousand dollars ($500,000) and one (1) year imprisonment.

------------------------------------------------------------------------------------------------

                                                                             

Question #2.6:  What safety measures are in place for refusing to conduct any procurement

activity that is in contravention of the Act for persons that perform the duties of a Procurement Officer but is not the ‘Named’ Procurement Officer?                   

                                                 

 Answer #2.6:  Section 40(a) provides that ‘a person shall not be dismissed, suspended,  demoted, disciplined, harassed, denied a benefit or otherwise negatively affected because –

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

                  (i) notified the DPP, the Police, the Integrity Commission or the Office that his           

                       employer or any other person has contravened or is about to contravene the Act;

                (ii) done or stated the intention of doing anything that is required to be done in order                                     

                        to avoid having any person contravene this Act; or

              (iii) refused to do or stated the intention of refusing to do anything that is in   

                      contravention of this Act; or

(b) his employer or any other person believes that he will do something described in paragraph (a).


Victimisation - Offences and Penalties (Schedule 1) - carries a fine of five hundred thousand ($500,000) dollars and one (1) year imprisonment on summary conviction.

------------------------------------------------------------------------------------------------

                                                                             

Question #2.7 :  Would the OPR deal with issues as it relates to wrongful dismissal of Public

Procurement Officers?

                                                                             

Answer #2.7:  Yes, there will be an independent mechanism for whistleblowing where you can report issues of wrongful dismissals or any other related issues which may result in an

investigation by the OPR.

------------------------------------------------------------------------------------------------

3) contract management

 Question #3.1:  Is contract management a function of the Procurement Department? How much of a role does Procurement, User and the Legal Departments have in contract management?

                                                                            

Answer #3.1 : “Contract Management is the effective and efficient monitoring of procurement contract activities to ensure that goods, works and services are delivered in a timely manner at the agreed cost and to the specified requirements” (OPR’s General Guideline, Management and Monitoring of Procurement Contracts, p. 3).


All contracts including purchase orders (POs) must be monitored by the User Department with the support of the Procurement Unit, and the Legal Unit (for specialist advice). In effectively managing major procurement projects, a project management team which comprises of personnel (at a minimum) from the User, Procurement and Legal Unit must be set-up to manage the procurement contract. The project management team would be responsible for developing a contract management plan that reflects both the technical and administrative aspects of the contract (UN Procurement Practitioner’s Handbook, 2017, p. 121-122).


The User Department or the project management team is responsible for ensuring that the goods, services or works are delivered in accordance with the agreed contractual terms and conditions, within the stipulated timelines and at the contracted price. The Procurement Unit is responsible for ensuring that there is a shared understanding, distribution of responsibilities and systems and procedures are in place to monitor and control contract performance and effectively deal with potential changes and disputes. Additionally, the Finance Unit has the responsibility of clearing invoices and managing budgets. (UN Procurement Practitioner’s Handbook, 2017, p. 121).


All Units will be responsible for maintaining records in relation to their respective responsibilities.

 ------------------------------------------------------------------------------------------------ 

                                                                               

Question #3.2: With reference to the procurement cycle, if a public body is not satisfied with the performance of a supplier, should the supplier be paid prior to a report being done by the public body?

                                                         

Answer #3.2:   Monitoring of contract performance is a key function in the contract administration process as it ensures that all involved parties are performing their duties in accordance with the contract (OPRs General Guideline, Management and Monitoring of Procurement Contracts, p. 18).


The procurement officer must routinely oversee the management of contract administration and supplier relations, ensuring compliance with the terms and conditions of the contract, especially where said terms and conditions may diminish the value of the contract to the public body. As such, it is important that the User Department promptly inform the Procurement Unit of any discrepancies or areas of dissatisfaction with a supplier or contractor’s performance under the contract.


Where supplier performance issues arise, the public body may consider paying the non-disputed amount and retaining the disputed amount until the respective issue is resolved.


Payments to a supplier or contractor must be made in accordance with the terms and conditions of the contract and subsequent to the requirements under the contract being fulfilled. Contractual issues relating to the performance of a supplier or contractor must be managed.


If a public body is not satisfied with the performance of a supplier or contractor under the contract, the public body must officially notify the supplier or contractor and give the supplier or contractor the opportunity to remedy the defects. In the drafting of the contract agreement, public bodies must ensure that risk management provisions (e.g. indemnity clauses, defect liability period clauses, performance bonds etc) and methods for handling contract disputes (Alternative Dispute Resolution and litigation processes) are included in its contract documents.


Refer to the General Guidelines for Management and Monitoring of Procurement Contracts and Managing of Risks in Procurement for additional details.

 ------------------------------------------------------------------------------------------------ 

                                                            

Question #3.3:  Is there a supplier evaluation programme that may be recommended?

                                                   

Answer #3.3 :   Each Public Body is required to develop a supplier evaluation programme.


Public Bodies may refer to the General Guidelines on Management and Monitoring of Procurement Contracts and Procurement of Works to guide in the development of a supplier evaluation programme.

 ------------------------------------------------------------------------------------------------ 

                                                                             

Question #3.4: Would the OPR propose a contactor performance model or module or evaluation sheets or templates that will assist organisations in evaluating contractors for performance?

                                                                            

 Answer #3.4:  The General Guideline, Management and Monitoring of Procurement Contracts and the General Guideline, Procurement of Works provide a framework for contract and contractor performance monitoring. 


The evaluation sheets and templates will be provided on the OPR’s website www.oprtt.org  at a later date.

 ------------------------------------------------------------------------------------------------ 

                                                                        

Question #3.5:  How to differentiate a variation to an existing contract from a new contract?

                                                                           

Answer #3.5: A variation may be to add, alter or omit work from the original scope (Halsbury’s Laws of England)


Variations may involve dealing with circumstances where a supplier or contractor makes a claim for additional unforeseen work or costs, or where the public body has varied its requirements from the supplier or contractor. Typical variations include: delays (excusable, non-excusable); and minor variations to the scope of work or execution conditions. (UN Procurement Practitioner’s Handbook, 2017, p. 128)


When a request for the variation of a contract agreement arises, the public body must determine whether the request for a variation is significant to the scope of works, the reason for the variation, whether it is a one-time or continuing occurrence, the impact on the contract in terms of time and cost etc. Based on this analysis by the contract management team, a decision must be taken regarding the most effective and corrective action to address the variation within a reasonable time so as not to disrupt the performance of the contract.


Any analysis of variations should be timely and “it is especially important to act promptly during the early stages of contract performance when corrective action is likely to have the greatest effect” (UN Procurement Practitioner’s Handbook, 2017, p. 126).


If the variation would result in a significant change to the contract scope and cost, then a new procurement process should be initiated to ensure the process is fair, transparent and best value is obtained.

 ------------------------------------------------------------------------------------------------ 

                                                                             

Question #3.6:  Supplier performance is subjective and dependent on the entity's standard. How would the OPR guard against improper disqualification and 

de-listing? If a supplier is made ineligible by one public body and they are satisfying 5 other contracts with 5 public bodies and they are ineligible  and do you then stop all other contracts?                

                                                 

 Answer #3.6:  Supplier performance management should not be subjective, but rather assessed in accordance with the performance of the terms and conditions of the contract.


Further, section 58 of the PP&DPP Act defines ‘ineligibility list’ as ‘a list of suppliers or contractors who shall not participate in procurement proceedings’.


Section 58(3) of the PP&DPP Act provides that “The Office may add a supplier or contractor to the ineligibility list where the supplier or contractor—

(a) consistently fails to provide satisfactory performance;

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

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


Pursuant to section 59(8) A supplier or contractor whose tender or proposal is rejected or revoked under subsection (7) shall be added to the ineligibility list, pursuant to section 58, for a period of ten (10) years following the date of rejection or revocation of his tender or proposal.’


Where ineligibility arises from a supplier or contractor’s failure to provide satisfactory performance (s58 (3)(a)), the supplier or contractor should be given an opportunity to rectify the issue. Further, where a public body makes a recommendation for a supplier or contractor to be placed on the ineligibility list, all documentary evidence in terms of a performance management system, to illustrate that the public body provided the supplier or contractor with adequate opportunity to fix and manage the problem, will be required to be produced to support the public body’s case.


Pursuant to section 58(5) ‘A supplier or contractor shall be accorded an adequate opportunity to be heard and to make representation before he is added to the ineligibility list’.


All other public procurement contracts being performed by that supplier or contractor will need to closely managed by the respective public bodies to completion. Thereafter, the ineligible supplier or contractor will not be able to participate in any new public procurement processes for the specified period.


The Public Procurement and Disposal of Public Property Regulations will dictate the mechanism and manner for adding a supplier or contractor to the ineligibility list. It is proposed that a committee will be appointed to conduct such ineligibility proceedings, the composition of the ineligibility committee and procedures will be detailed/defined in the said Regulations.

 ------------------------------------------------------------------------------------------------