The Office of Procurement Regulation

FAQs

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 GENERAL - Procurement and Disposal Advisory Committee
 Will the composition of Procurement and Disposal Advisory Committee (PDAC) vary according to subject matter or are the appointments permanent?
   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. Of note, the public body’s handbooks and guidelines should state clearly the composition of the PDAC that it will adopt.
 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?
   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.
 Is the subject matter expert developing the evaluation criteria and approving the evaluation reports as a member of PDAC?
   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.
 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?
   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.
 Can members who sit on the Disposal Committee also sit on PDAC?
   Persons sitting on the 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 Officer via the PDAC (who acts as an advisory committee to the Accounting Officer).
 Who selects the PDAC committee?
   The Accounting Officer or equivalent selects the members of PDAC.
 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 this committee?
   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 each Division of the THA ought to have a ‘Named’ Procurement Officer 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.
 GENERAL - Offences and Penalties
 Can you clarify if the penalties attached when breaching the Act are attached to the Procurement Officer alone?
   Section 61(3) of the Public Procurement and Disposal of Public Property Act 2015 (as amended) (hereinafter referred to as ‘the Act’) 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.
 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?
   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.
 Are there any provisions under The Act to address breaches by Suppliers/Contractors?
   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, s59(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.
 How should the Procurement Officer treat with restricting an award of a contract to suppliers/contractors based on instructions?
   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 imprisonment for ten (10) years”.
 With reference to estimation and value of procurement, section 32(1) of the Act, what exactly is splitting of procurement?
   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 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.
 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?
   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 this 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.
 Would the Office deal with issues as it relates to wrongful dismissal of Public Procurement Officers?
   Yes, there will be an independent mechanism for whistleblowing where you can report issues of wrongful dismissals as it pertains to breaches of the Act or any other related issue which may result in an investigation by the Office.
 STAGE 1 - Procurement Planning & Strategy Development
 When can we issue a Request for Information (RFI)?
   “A Request for Information is a market consultation document issued for the purpose of obtaining information to assist the purchaser in its procurement planning” – Emanuelli, Paul. Government Procurement. Toronto, Ontario: LexisNexis, 2017. As such, a RFI can be issued during the procurement planning stage or prior to a public body beginning its tendering process. A RFI is generally not intended to result directly in the awarding of a contract and its ‘information only’ intention should be unambiguous. Of note, a RFI process should be conducted in an open and transparent manner to allow all interested suppliers or contractors to submit information.
 What is to be reported in the planned procurement activities for publishing?
   The Annual Schedule of Procurement Activities flows from a public body’s Annual Procurement Plan and can be appended to the Annual Procurement Plan. The Annual Procurement Plan presents a strategy through which a public body can manage its procurement-related risks and opportunities in support of the delivery of its organisation’s mandate and strategy and must include all planned procurement activities for the following fiscal year. Pursuant to section 27 of the Public Procurement and Disposal of Public Property Act, 2015 (as amended) (hereinafter referred to as ‘the Act’), since the planned procurement activities of a public body must be published on its website or in any other electronic format no later than six (6) weeks after the National Budget is approved, the Annual Procurement Plan should take into consideration the allocation for the fiscal period. The Annual Schedule of Procurement Activities (to be published) should include the following information: i. Project number; ii. Project name; iii. Brief description of the Project; iv. Proposed Date for the Issue of Bidding documents; v. Expected Delivery/Completion Date; vi. Estimated Project Delivery (for Works and Services); vii. Procurement Method; viii. Duration of Standstill Period (if applicable); and ix. Contract Type.
 Is the scope and cost combination in the Annual Procurement Plan the same as a Bill of Quantities?
   The scope and cost combination in an Annual Procurement Plan is not the same as a Bill of Quantities (BOQ) as a BOQ is a more detailed breakdown of the cost associated with a particular procurement activity. The scope and cost used in your procurement planning process would be developed based on the needsidentified by the public body. In addition, by undertaking market research, portfolio analysis and consulting with subject matter experts, a public body should be able to develop a reasonable cost estimate.
 How long after the publication of the Annual Schedule of Planned Procurement Activities should a public body wait before going out to Tender?
   Pursuant to section 27 of the Act, a public body is required to publish, no later than six (6) weeks after the approval of the National Budget, its planned procurement activities. There is no specified timeframe that prohibits a public body, subsequent to the publication of its planned procurement activities, from procuring goods, works and services.
 Even though the Act is not yet fully proclaimed, do we have to publish the Annual Schedule of Planned Procurement activities?
   Since section 27 of the Act has not been proclaimed, public bodies are not required to publish its Annual Schedule of Planned Procurement activities. However, upon full proclamation (or proclamation of section 27), publishing of all planned procurement activities will be mandatory. The Office is therefore recommending that public bodies practise the requirements under the Act so that upon full proclamation, public bodies will already be in the habit of complying with the requirements of the Act.
 What determines a reasonable level of specification before it becomes restrictive? Could restrictive specifications be used to manipulate the outcome of a tendering process?
   Specifications describe the precise parameters or standards that a supplier or contractor must meet in order for the purchase to be accepted by the public body. Specifications must be included in the solicitation document(s) issued to interested suppliers or contractors as it forms the basis for submitting offers. In the case of goods, the specifications describe the characteristics of what is to be purchased; with services, the specifications sets out what is required of the service provider; and with works, the specifications sets out a description of the requirements of services to be performed and may include material requirements to perform the needed services. All specifications must seek to promote overall competition, shall not be restrictive, and provide fair and equal opportunity for every supplier or contractor that is able to meet the State’s needs. As such, in developing or defining specifications, a public body may refer to either performance or functional requirements; or reference national or international recognised standards which may be combined with an indication that ‘equivalents’ (where appropriate) will be required. By describing specifications in terms related to performance or functional requirements or national or international recognised standards instead of trademark, brand name or patents, this can ensure fair treatment and equality of opportunity for bidders. As such, biased or restrictive specifications create unnecessary obstacles for bidders and limits competition by precluding other bidders, other than the incumbent, from submitting a compliant proposal.
 Would the Office make the use of SUPREM mandatory?
   The use of SUPREM by public bodies is not mandatory. However, the Office recommends that public bodies use SUPREM (or a suitable risk management tool) to assess risk and assist with procurement planning activities. Of note, the Office is currently working with the developers of SUPREM to upgrade the tool, following which the Office will roll out SUPREM to public bodies
 STAGE 1 - Pre-Qualification and Pre-Selection
 Does the procurement depository take precedence over a public body’s vendor database?
   In accordance with section 26 (1) of the Public Procurement and Disposal of Public Property Act, 2015, as amended, (hereinafter referred to as ‘the Act’), “the Office is required to establish a database, to be known as the Procurement Depository, to which suppliers or contractors can submit information with respect to, among other things, their qualifications and experience”. Additionally, pursuant to section 13 (q), the Office is required to "prepare and maintain a comprehensive database of prequalified contractors and suppliers”. The Office will provide each public body with the opportunity to submit its list(s) of pre-qualified suppliers or contractors to the Office. Once the list is verified by the Office, the prequalified suppliers or contractors will be uploaded onto the Office’s database.
 Can public bodies invite companies via public advertisements to be registered on the Procurement Depository?
   Public bodies will be able to invite companies to be registered on the Procurement Depository via public advertisements. Once the Procurement Depository goes live, a public body may invite companies to register by informing suppliers or contractorsto input the required information and documents on to the Depository. Public Bodies will be advised when the Depository is close to completion as sensitisation sessions and/or workshops will be held with the relevant stakeholders.
 Is a procuring entity obligated to use the Procurement Depository?
   Pursuant to section 13(1) (q) of the Act, the Office will “prepare and maintain a database of pre-qualified contractors and suppliers”. Further, pursuant to section 26(1) of the Act, there will be one Procurement Depository, where suppliers or contractors can express their interest in becoming pre-qualified. Once the supplier or contractor fulfils all the requirements on the Procurement Depository, the supplier’s information will be sent to an ‘assigned’ public body to conduct due diligence checks regarding the suppliers or contractors request to be pre-qualified and in accordance with section 29 of the Act. Once the pre-qualification assessment is completed by the public body, the list of pre-qualified suppliers or contractors must be sent to the Office for uploading unto the database of pre-qualified suppliers or contractors. Therefore, if a public body is beginning a procurement process, the public body must ensure that each supplier or contractor it engages, is on the pre-qualified list of suppliers or contractors.
 How will the Office ensure equality of opportunity in the implementation of the Procurement Depository?
   In accordance with 26 (1) of the Act, the Office shall establish ‘the Procurement Depository’, to which suppliers or contractors can submit information with respect to, among other things, their qualifications and experience. The Procurement Depository shall be accessible for public viewing which includes suppliers and contractors via the Office’s website. The pre-qualification due diligence requirements have also been standardised across public bodies in accordance with section 29 of the Act, allowing for a fair and transparent process. Additionally, the ‘named’ Procurement Officer is responsible for ensuring fairness and equity in accordance with section 5 of the Act.
 What are the consequences of a public body inviting a supplier or contractor who is not registered on the Procurement Depository to tender ?
   Pursuant to section 6 of the Act, “any procurement of goods, works or services or retention or disposal of public property that is not done in accordance with the Act and any procurement contract or agreement that is not entered into in accordance with the Act shall be void and illegal”. As such, if a public body wishes to invite a supplier or contractor who is not registered on the procurement depository to participate in a particular procurement process, the public body must advise the supplier or contractor to register on the Procurement Depository to become prequalified on the database. Prior to the public body issuing any award of contract or entering into a framework agreement with the said supplier or contractor, the supplier or contractor must be listed as a pre-qualified vendor on the database.
 Is use of the Depository only for procurement activities over a certain value?
   The use of the Procurement Depository applies to all procurement and disposal activities executed by public bodies regardless of the value of the procurement and disposal activity. The requirements for the pre-qualification of suppliers or contractors will depend on value, as suppliers or contractors will be pre-qualified based on specific value categories (small, medium and large).
 Will foreign organisations be placed on the Procurement Depository?
   International suppliers or contractors are required to follow the same process as local suppliers or contractors, and will be required to be pre-qualified prior to any award of contract.
 Will there be a minimum number of prequalified suppliers to use depending on the value of the contract?
   There is no established minimum number of pre-qualified suppliers or contractors a public body is required to invite for any particular procurement process. If there are numerous pre-qualified suppliers or contractors on the database and it is impractical to invite all suppliers or contractors to participate in the specific procurement activity, a pre-selection process can be used by the public body. According to section 4 of the Act, pre-selection is defined as “the procedure to identify, prior to solicitation, a limited number of suppliers or contractors who best meet the qualification criteria for the procurement concerned”. The public body’s pre-selection documents must set out the maximum number of pre-selected suppliers or contractors from which bids will be requested and the manner in which the selection of that number will be carried out. The procuring entity shall pre-select suppliers or contractors that acquired the best rating, up to the maximum number indicated in the pre-selection documents. For example, if a procuring entity determines that ten (10) supplier or contractors will be pre-selected, then this number must be set out in the public body’s pre-selection documents and based on the pre-established criteria set out in the preselection documents, the top ten (10) ranked suppliers or contractors should be invited to participate in that particular procurement activity.
 Pre-qualification lists expire every two (2) or three (3) years and should be redone for the data to remain current and reliable. Given the Office's timeline for the Procurement Depository, would it make sense for an entity to undertake a new or an update of a pre-qualification exercise?
   Once a supplier or contractor uploads the required information to the Procurement Depository, the ‘assigned’ public body will carry out the requisite due diligence checks. The suppliers or contractors satisfying the pre-qualification requirements, will be added to the pre-qualified database. Once the supplier or contractor is pre-qualified this does not expire. However, some of the information provided by the supplier or contractor will expire and the supplier or contractor is required to update this information. The system will issue reminders to the suppliers or contractors of the expiration of the relevant documents. Once a supplier or contractor is on the database and updates the information as required, the supplier or contractor will remain pre-qualified.
 Who performs the assessment of the supplier and contractor for both the prequalification and pre-selection lists?
   Public Bodies will be responsible for the assessment of suppliers or contractors for both the pre-qualification database and their pre-selection lists. The Office will assign a public body to conduct the due diligence requirements as set out in section 29 of the Act for the pre-qualification of suppliers or contractors. A public body may establish a Committee to conduct the evaluation/assessment of the pre-qualification submissions and said Committee will make a recommendation to the ‘named’ Procurement Officer. The ‘named’ Procurement Officer should obtain the approval of the Accounting Officer prior to the submission of the approved pre-qualified list to the Office.
 Will suppliers or contractors be charged a fee by Office to be registered for prequalification?
   There is no charge/fee to be registered on the Procurement Depository or to be pre-qualified on the database.
 Does a supplier or contractor still have to submit pre-qualification documentation at the time of bid submission if they are listed on the Procurement Depository?
   Section 29 (8) of the Act states that a procuring entity may require a supplier or contractor that was pre-qualified in accordance with the Act to demonstrate his qualifications again in accordance with the same criteria used to pre-qualify such supplier or contractor. As such, a public body may require a pre-qualified supplier or contractor to demonstrate his qualification again. Of note, the criteria used to pre-qualify is the criteria the supplier or contractor must be assessed against. Additionally, prior to contract award a public body must do its due diligence, therefore documents may be requested from a supplier or contractor as part of this due diligence exercise.
 For Public Bodies who have already developed a pre-qualification system based on industry (e.g. oil and gas) where there are special safety requirements, can we do a prequalification for suppliers based on these requirements?
   There will be one database of pre-qualified suppliers or contractors for use by all public bodies in accordance with section 13 (1) (q) of the Act and this database will be maintained by the Office. In its pre-selection process, a public body may address the specific or unique requirements for a particular procurement activity. For example, public bodies in the energy sector may require suppliers or contractors to be Safe to Work (STOW) certified. As such, suppliers or contractors possessing STOW certification can be assessed in the pre-selection evaluation process.
 If we have an open tender that is won by a supplier who was not previously qualified, does that supplier automatically become pre-qualified on the Office’s database?
   As part of the open tender process suppliers or contractors should be advised in the solicitation document, to register on the Procurement Depository and provide the required information to become pre-qualified on the Office’s database. Once the supplier or contractor uploads their documents on to the Procurement Depository, the ‘assigned’ public body will conduct the pre-qualification exercise simultaneously. If the supplier or contractor satisfies the pre-qualification requirements the supplier or contractor will be added to the Office’s pre-qualified database.
 Are State Enterprises required to be registered or placed on to the prequalification database to participate in a procurement process advertised by a public body?
   All suppliers or contractors must be registered on the prequalified database to be eligible to participate in a public procurement process. Therefore, if a State Enterprise wishes to be eligible to participate in a public procurement process, they must satisfy the pre-qualification requirements and be listed on the prequalified database.
 For high value tenders, will three (3) years audited accounts be a compulsory requirement of non-local companies from jurisdictions when audited requirements are not required in law in their jurisdiction?
   According to ‘the General Guidelines: Pre-Qualification and Pre-Selection of Suppliers and Contractors’, the submission of Audited Financial Statements or equivalent is a requirement for pre-qualification for contracts over two (2) million Trinidad and Tobago Dollars (TTD $2,000,000.00). “For contracts with relatively low to medium risk and value, requesting Banker’s Letter or Management Accounts as evidence of the bidder’s financial capability may be more appropriate than requesting Audited Financial Statements”(General Guidelines: Pre-Qualification and Pre-Selection of Suppliers and Contractors, p.9). Of note, public bodies must conduct their due diligence checks when assessing the financial capability of local and international suppliers or contractors and must ensure that documents are valid and have been signed and authorised by legitimate Agents.
 What are considered Financial Statements?
   Financial statements are the information or records of the financial activities or financial position of a business. The documents required to assess financial capability as part of the pre-qualification process will be specified in the Procurement Depository. For the value category under two (2) million Trinidad and Tobago Dollars (TTD $2,000,000.00), Management Accounts are required and at a minimum these should include the Balance Sheet and Income Statements which must be signed by two (2) Directors of the company.
 How do you verify the validity of the VAT and Income Tax Clearance Certificate?
   As part of its due diligence process, public bodies can verify the validity of the documents submitted by suppliers or contractors from the relevant authority. For example, the Board of Inland Revenue, can be contacted to verify the validity of the VAT and Income Tax Clearance Certificates.
 How would a public body keep information pertaining to a supplier or contractor’s director(s) criminal record up to date if the pre-qualification is valid for a 3 year period?
   Once a supplier or contractor logs on to the Depository and provides the required information, the Public Body then does its due diligence. If the supplier or contractor meets the requirements the supplier or contractor is added to the prequalified database. Once the supplier or contractor is prequalified this does not expire. It is the supplier or contractor’s responsibility to keep this information current and valid. As it pertains to the criminal background of the director(s) of suppliers or contractors, information must be provided by the supplier or contractor to illustrate that they meet this requirement in the form of a declaration from the company and a Police Certificate of Good Character. This information would be uploaded on to the Procurement Depository and as part of a public body’s due diligence process, a supplier or contractor can be requested to provide updated documents.
 Given that suppliers or contractors must submit information during the pre-qualification process, when a Request for Quotation is issued should updated documents be requested?
   During the pre-qualification of suppliers or contractors, all suppliers or contractors will be required to submit the relevant statutory and qualification documents pursuant to section 29 of the Act. During a procurement process and prior to an award of contract, a public body is required to conduct its due diligence checks to verify that all documents submitted by the supplier or contractor is valid.
 If a supplier or contractor who has recently gotten out of jail submits a tender, should the Public Body accept or reject his bid?
   In accordance with section 29 (1) (c) of the Act “A procuring entity shall ensure that suppliers and contractors have not, and their directors or officers have not, been convicted of any criminal offence”. The Act mandates that the directors or officers of a supplier or contractor must not be convicted of a criminal offence. However, the Office having reviewed same and based on discussions that ensued thereafter with stakeholders, proposes an amendment to section 29(1). The said amendment is currently before the Attorney General of Trinidad and Tobago, and the Office will be advised accordingly on the suggested amendments.
 Would categorising small suppliers or contractors by location be restricting their opportunity for growth?
   Pursuant to section 5 (c)of the Act, “The objects of this Act are to promote local industry development…”. The Office proposes to categorise suppliers or contractors by geographic location to allow them greater access to procurement opportunities within their respective geographical location. For example, two hundred (200) small plumbing contractors have been pre-qualified and are located throughout Trinidad and Tobago and a public body requires plumbing services in Toco. Instead of inviting all 200 small plumbing contractors, a public body may invite only the suppliers or contractors who operate in that particular location. Categorisation by geographical location allows suppliers or contractors (in a particular geographic location) a greater opportunity in being able to participate in public procurement proceedings and promotes local industry development. Further, ‘the General Guidelines for PreQualification and Pre-Selection of Supplier and Contractors’ categorise suppliers or contractors by value categories.
 Should a public body rotate its suppliers? For example if a public body has 100 pre-qualified suppliers or contractors within a particular category, can the first twenty-five (25) be selected for a project and a subsequent project of the same value the other twenty-five (25)?
   The Office is not recommending the use of rotation or rosters. Public bodies should instead utilise a pre-selection process to identify, prior to solicitation, a limited number of suppliers or contractors who best meet the qualification criteria for the procurement concerned. For additional information on pre-selection please refer to ‘the General Guidelines for Pre-Qualification and PreSelection of Suppliers and Contractors’, which can be located on the Office’s Website, ‘Resource Centre’ Tab.
 With respect to pre-qualification and pre-selection, is ‘repairable omission’ considered? If so what guidance or advice is offered for its use?
   The following provisions of the Act shall apply: - Section 29 (3) of the Act states as follows: “Any requirement established pursuant to this section shall be set out in the prequalification or pre-selection documents, if any, and in the solicitation documents and shall apply equally to all suppliers or contractors.” Section 29 (4) “A procuring entity shall evaluate the qualifications of suppliers or contractors in accordance with the qualification criteria specified in subsection (1) and procedures set out in the pre-selection documents, if any, and in the solicitation documents. ”Section 29 (5) “ notwithstanding subsection (4) a procuring entity may require the supplier or contractor presenting the successful submission to certify on oath that the documentary evidence provided to demonstrate his qualifications for the particular procurement is true and correct.” Section 29 (6) “A procuring entity shall disqualify a supplier or contractor if the information submitted concerning the qualifications of the supplier or contractor was materially inaccurate or materially incomplete so as to constitute a misrepresentation”. Section 29 (7) “A procuring entity may disqualify a supplier or contractor if the information submitted concerning the qualifications of the supplier or contractor was inaccurate or incomplete in any respect and the supplier or contractor fails to promptly remedy the inaccuracy or incompleteness upon the request of the procuring entity”. Section 29 (8) “A procuring entity may require a supplier or contractor that was pre-qualified in accordance with this Act to demonstrate his qualifications again in accordance with the same criteria used to pre-qualify such supplier or contractor”. As such, a public body in undertaking its due diligence may require a supplier or contractor presenting the successful submission to certify an oath that the documents submitted are true and correct; or may require a supplier or contractor to demonstrate its qualifications again. Of note, best practice dictates that such requests for documentation or clarification shall not seek to make a noncompliant bid complaint and in keeping with section 5 the objects of the Act, public bodies must treat suppliers or contractors fairly and equitably therefore affording all suppliers or contractors the same opportunity.
 In a pre-selection process if you preselect up to ten (10) suppliers or contractors do you have to select or rank them in order from one (1) to ten (10)?
   In a pre-selection evaluation, the public body must rate the suppliers or contractors that meet the criteria specified in the pre-selection documents according to the manner of rating that is set out in the pre-selection documents. The public body must then pre-select suppliers or contractors that acquired the best rating, up to the maximum number indicated in the pre-selection documents. If a public body decides to pre-select the top ten (10) ranked suppliers or contractors, the suppliers or contractors must then be ranked and the ten (10) highest ranked suppliers or contractors should be pre-selected.
 STAGE 2 - Solicitation of Tenders
 Do small organisations, now have to administer contracts for small procurement activities rather than doing the three-quote system?
   The request for quotations (three-quote system) is a procurement method that is used for small value procurements of readily available off-the-shelf goods, low value construction works, or low value services procurements. The request for quotation method is not complex and is considered non-competitive because the public body determines which suppliers or contractors to request quotations from (as long as a minimum of three (3) are invited). This procurement method should only be used under conditions stipulated in a public body’s approved Handbooks and Special Guidelines. Of note, the complexity of a requirement, procurement category, and monetary value are all important factors to consider when deciding on the procurement method. The OPR recommends framework arrangements or agreements as an alternative to placing ‘one-off’ orders for recurrent contracts for works or supplies. Framework arrangements optimise volume purchasing discounts and minimises repetitive purchasing tasks.
 For public bodies aiming to get value for money, are there any provisions made for public bodies to solicit goods and services from international manufacturers rather than the local supplier who may seek to take advantage of sole supplier privileges?
   The Public Procurement and Disposal of Public Property Act, 2015 (as amended) (hereinafter referred to as ‘the Act’), defines value for money as including “the value derived from the optimal balance of outcomes and input costs on the basis of the total cost of supply, maintenance and sustainable use”. The Act promotes open competition in public procurement and all public procurement processes must be done in accordance with the Act as any procurement contract or agreement that is not entered into in accordance with the Act will be void and illegal (section 6 of the Act). If a public body is of the view that value for money is not being achieved, then this would require the public body to undertake an investigation and analysis of alternative procurement options as well as a cost benefit analysis to measure both financial and non-financial factors. For instance, the public body may contact the international manufacturer to ascertain the cost of the good or service offered by the international manufacturer against what is offered by the local supplier to discern the value added by the local supplier to warrant the price variance. This analysis will assist public bodies in determining whether value for money is being achieved.
 Is it illegal to send out a request for quotation today at 11 a.m. and close it at 2 p.m.?
   Unless urgent ‘public interest considerations’ require ‘emergency’ procurement, setting an unreasonably short timeframe for submission of bids is not in keeping with best practice. In keeping with the objectives of the Act, i.e. transparency, it is important that public bodies allow sufficient time from the publication of the tender notice or RFQ to the deadline for submitting the bids, as a short timeframe could disadvantage some bidders. “An insufficient or unreasonably short timeframe does not allow equality of access to suppliers. This type of procedural transparency is essential to ensure that bidders are treated fairly and to promote competition” (Trepte, P., et al., 2011, Trade Effects of Rules on Procurement for Commonwealth ACP Members, Economic Paper, No. 92, CommonwealthSecretariat, London, https://doi.org/10.14217/9781848591233-en). Public Bodies should allow suppliers or contractors adequate time to respond to a solicitation document, to encourage sufficient responses and to facilitate a competitive process.
 Can a deadline of 3-4 days forsubmitting a quotation be stipulated in a Public Body’s Handbooks and Guidelines?
   Unless urgent ‘public interest considerations’ require ‘emergency’ procurement, public bodies should allow suppliers adequate time to respond to a solicitation document, to encourage sufficient responses and to facilitate a competitive process. Further to section 30 of the Act, a public body’s Handbooks and Special Guidelines must be submitted to the Office for approval. This is done to ensure that public body’s public procurement procedures are in compliance with the Act. If the Office determines that the procurement procedures documented in a public body’s Handbooks and Special Guidelines are not in compliance with the Act, the said Handbook and Special Guidelines will not be approved and will be returned to the public body for the necessary amendment(s).
 Can the ‘named’ Procurement Officer dictate that the tender period is too short and place a longer period in the tenders documents to be issued even if the executing unit objects?
   Section 61(2) of the Act states that “a public body shall have a procurement officer who shall be responsible for public procurement and the disposal of public property for that body and shall notify the Office, in writing, of the name and designation of its procurement officer”. As such, if the ‘named’ Procurement Officer determines that the deadline for submission of bids is unreasonably short, he or she can modify the timeframe in keeping with the Act, Regulations, approved Handbooks and Special Guidelines.
 STAGE 3 - Evaluation & Awarding of Contracts
 In the event the OPR overturns the award of a procurement contract or framework agreement, how is the procuring entity to proceed given that the scope has been tendered for and the commercials have been opened and evaluated?
   Section 6 (1) of the Public Property and Disposal of Public Property Act, 2015 (as amended) (hereinafter referred to as ‘the Act’) states that “Subject to section (2) any procurement of goods, works or services or retention or disposal of public property that is not done in accordance with this Act and any procurement contract or agreement that is not entered into in accordance with this Act shall be void and illegal”. Further Section 41 (1) of the PP&DPP Act provides that “the Office may on its own initiative or shall as a result of a complaint made under this Act, consider, inquire into and investigate any alleged breach of this Act”. Section 50(10) of the Act states “that in making its decision with respect to an Application (for review) that it has entertained, the Office may (d) overturn the award of a procurement contract or a framework agreement that entered into force in a manner that is not in compliance with this Act and, if notice of the award of the procurement contract or the framework agreement has been published, direct that the notice of the overturning of the award be published”. If the Office decides to overturn the award of a procurement contract or a framework agreement that entered into force in a manner that is not in compliance with this Act, the Office will promptly notify in writing the procuring entity of its decision and all other participants of the procurement proceeding. As such, once the Office has overturned the award of a procurement contract or a framework agreement, the entire procurement proceedings would be cancelled and a public body would have to ‘re-tender’ for the specific good, works or services. Of note, a public body or person who, without reasonable justification, fails to comply with a direction issued under the Act commits an offence and is liable on summary conviction to a fine of one hundred thousand dollars according to section 14(2) of the Act.
 How do we treat with inconsistencies in the evaluation criteria?
   “Evaluation criteria (award criteria) are the standards and measures used to determine how satisfactorily a proposal has addressed the requirements identified in the bidding document.” (General Guidelines, Evaluation of Bids and Awarding of Contracts, p.5). The evaluation criteria constitutes the basis on which a public body chooses the best offer and consequently awards a contract. The evaluation criteria must be established in advance by the public body and may not be prejudicial to fair competition. The proper application of the evaluation criteria is crucial for the process of awarding public contracts. If the evaluation criteria is not applied properly, the tender process, the evaluation of tenders and the contract award decision may be flawed. This could mean that the tender process would have to be cancelled and re-started, as otherwise the ‘best’ tender would not have been selected. Any inconsistencies in the evaluation criteria identified prior to the deadline for submission of bids can be amended or removed by issuing an Addendum to all prospective bidders followed by the appropriate extension of the time limit for the receipt of bids. If inconsistencies in the evaluation criteria are found subsequent to the deadline for submission of bids, the public body must objectively evaluate all bids in accordance with the published evaluation criteria. However, if the inconsistency would lead to a flawed evaluation award decision not in keeping with the objects of the Act, then the public body should cancel and re-invite. Of note, the public body must interpret and/or apply the award criteria in the same way throughout the entire procurement activity.
 Why do we need to assess the methodology in a selective tender?
   Selective tendering is a procurement method that limits the request for tenders to a select number of suppliers or contractors. This method of procurement is also referred to as Limited Bidding and Restrictive Tendering. The methodology is used to assess a supplier’s or contractor’s approach to executing the services specified in the public body’s requirements. The public body will have to ascertain whether the bidders’ methodology will achieve the public body’s requirements as set out in the solicitation documents.
 Should health and safety be considered as a compliance or relevant element to be evaluated for the procurement of works and some services since it is governed by OSHA?
   All public bodies must comply with the Occupational Safety and Health Act Chap. 88:08. Further, public bodies should have a Health Safety Security and Environment (HSSE) policy suitable to its particular industry. The public body would need to determine whether health and safety requirements should be a mandatory evaluation requirement or a contract performance standard.
 Is progressive evaluation recommended?
   Weighted criteria with mandatory elements are criteria that have mandatory minimum requirements defined and are measured above that minimum criteria. In a progressive evaluation the supplier or contractor must achieve a minimum score in each criterion set out in the bidding document (e.g. minimum score of fifty percent (50%) in addition to satisfying the overall pass mark specified in the bidding document (e.g. minimum overall score of seventy percent (70%). Only bids that achieve the minimum criterion score as well as the overall minimum score will proceed to the evaluation of its price or financial bid. Of note, the recommended evaluation approach is one that is consistent with the requirements of the particular procurement activity.
 If a supplier did not meet all of the technical requirements but met most, would they still be considered as having failed because they did not pass every requirement in the specifications?
   Generally, evaluation criteria can be categorised into three categories including (i) mandatory criteria, (ii) weighted criteria and (iii) weighted criteria with mandatory elements (UNDP, 2016). Mandatory criteria are used in straightforward bid evaluation methods where they are rated as pass/fail, responsive/non-responsive or compliant/non-compliant. The mandatory criteria are the first criteria against which bids are evaluated in order to eliminate bids that do not conform to these requirements. Weighted criteria are criteria which can be measured in terms of degree of responsiveness. The scale used to measure the degree of responsiveness depends on the procurement method and category of procurement. Weighted criteria with mandatory elements are criteria that have mandatory minimum requirements defined and are measured above that minimum criteria. As such, the acceptance or rejection of a bid is based on the evaluation criteria and methodology employed.
 What are the contractual implications of a Letter of Award?
   Whilst the Office notes the varying case law on the contractual implications of a Letter of Award. Once fully proclaimed, the contractual implication of a Letter of Award/Acceptance falls within the ambit of the Act. Pursuant to section 35 (6) the Act dictates that “upon expiry of the standstill period, or where there is none, promptly after the successful submission is ascertained, a procuring entity shall dispatch the notice of acceptance of the successful submission to the supplier or contractor who presented that submission unless the Office orders otherwise”. Further section 35(7) of the Act states that “unless a written procurement contract is required, a procurement contract in accordance with the terms and conditions of the successful submission enters into force when the notice of acceptance is delivered to the supplier or contractor concerned, so, however, that the notice is dispatched while the submission is still in effect”.
 What is the recommended composition of a Tender Evaluation Committee?
   “The composition and mandate of the evaluation committee is critical to an effective procurement process. Experience in the following areas is often required to effectively evaluate the proposals: a. Technical knowledge of the subject matter being procured b. Applicable law c. Procurement process d. In-house technology e. Commercial acumen” (General Guidelines, Evaluation of Bids and Awarding of Contracts, p.7). Typically, the committee is comprised of three (3) to six (6) persons depending on the size of the public body and the complexity or nature of the procurement. At a minimum the committee may be comprised of someone from the Procurement Department and a subject matter expert.
 Should the Chief Procurement Officer (‘named’ Procurement Officer) be solely responsible for the appointment of the Evaluation Committee? Is this a conflict with respect to separation of powers?
   Pursuant to section 61(2) of the Act, the ‘named’ Procurement Officer “shall be responsible for public procurement and disposal of public property for that public body”. However, the Accounting Officer should be responsible for approving the composition of the evaluation committee submitted by the ‘named’ Procurement Officer. This procedure should be outlined and approved in a public bodies Handbooks and Special Guidelines.
 How does one inform a nonsuccessful bidder of a contract if they do ask on their status?
   Pursuant to section 35 (2) of Act “a procuring entity shall promptly notify each supplier or contractor who presented submissions of its decision to accept the successful submission at the end of the standstill period”. Further section 35 (3) provides that the notice referred to in subsection (2) shall contain, at a minimum, the following information: i. the name and address of the supplier or contractor presenting the successful submission; ii. the contract price; and iii. the duration of the standstill period as set out in the solicitation document.
 If a contractor is first ranked and his cost is above the approved sum for the project and there are 2nd and 3rd ranked contractors who fall within the budget and is technically compliant, is it mandatory to still engage in negotiations with the 1st ranked or can we justify choosing the 2nd ranked?
   At the price or financial evaluation, the committee examines the offered price for computational errors taking into consideration factors such as provisional sums and discounts et cetera. A price reasonableness analysis can then be done to ascertain that the price of the recommended bidder is fair given the prevailing market conditions. As such, the first ranked bidder would have been identified by assessing the technical and financial capabilities of the supplier or contractor in accordance with the published evaluation criteria. Considering the preceding, it is not recommended that the second or third ranked bidders be engaged prior to engaging in discussions with the first ranked bidder.
 If the internal estimation is substantially lower than the market rates and this was only identified during the evaluation process, should the procurement process be cancelled if there is a time constraint attached?
   In the procurement planning phase, public bodies must conduct the necessary market research which includes collecting and analysing information about capabilities within the market to satisfy the public bodies requirements, such as obtaining updated cost information, determining the appropriate technology and alternative products, as well as identifying appropriate supplier or contractor qualification criteria. If a public body does not possess the in-house competence or capabilities to develop a comprehensive engineer’s estimate, then the public body can procure the required services or request the assistance of another public body. Once a transparent and fair evaluation process was conducted and the evaluation team determines that the internal estimate is not representative of the market rate of the required goods, works or services, a request for additional funding can be made. The internal estimate must go through an internal review to determine the ‘short comings’ which would then form part of the written justification to be put forward to the relevant public authority for review and decision. If the request for additional funding is granted, the evaluation committee can proceed to make a recommendation for award. Of note, all associated documentation must form part of the record of procurement proceedings. If, however additional funding is not available, the public body would be constrained to cancel that particular procurement activity.
 A Procurement Officer is given limited time to execute their due diligence to acquire an item of high value. When completing the quotation analysis, what justification would be most appropriate if only one supplier responds to a Request for Quotation (RFQ). Is it Emergency, Sole Selection or Best Availability?
   Restrictive tendering is a procurement method that limits the request for tenders to a select number of suppliers or contractors. This method of procurement is also referred to as Limited Bidding and Selective Tendering. A basic feature of this method is that competition is confined to a limited number of firms, either because they are the only ones qualified to fulfil the requirement, or certain conditions warrant the use of a limited number of firms in order to reduce the time and cost of the selection process. The request for quotations is a procurement method used for small value procurement of readily available off-the-shelf goods, low value construction works, or low value services. This procurement method is non-competitive because the requirement is usually not advertised, and the procuring entity invites quotations from a limited number of suppliers or contractors, usually a minimum of three (3). If the RFQ is sent to a minimum of three (3) suppliers or contractors and only one quotation is received in response to the request for quotation within the time specified for the closing of bids, the public body may proceed to evaluate the bid for compliance with the technical specification or scope or works of the requirement. If the quotation is deemed technically compliant then the public body must assess the price of the compliant quote and acceptable delivery or completion date. Subsequent to the completion of the procurement proceedings for the particular procurement activity, the public body can engage the suppliers or contractors who did not bid to enquire as to the reason(s) why as this would assist the public body in future RFQ processes. Therefore, this is not an emergency, sole selection or selection based on best availability.
 Is it right for a Permanent Secretary to submit a Tender Evaluation Report to a Minister for approval?
   Pursuant to the section 61 (2) of the Act, the ‘named’ Procurement Officer “shall be responsible for the public procurement and disposal of public property for that public body”. The Accounting Officer or equivalent is responsible for approving the recommendations of evaluation committee, subsequent to the review of the Procurement and Disposal Advisory Committee (PDAC). A Minister should not play a role in the evaluation and award process within a public body. However, the Accounting Officer may inform the Minister of decisions regarding procurement proceedings.
 Does the Accounting Officer have the authority to overturn the recommendation of the evaluation committee?
   The Accounting Officer has the authority to overturn the recommendation of the evaluation committee if he or she determines that the recommendation of the evaluation committee is not in keeping with the Act, Regulations or the public bodies approved Handbooks and Special Guidelines. The Procurement and Disposal Advisory Committee (PDAC) is responsible for reviewing the procurement proceedings, recommendations for contract award and property disposal files to ensure compliance with the Act, Regulations and the public bodies approved Handbooks and Special Guidelines and advise the Accounting Officer accordingly.
 Whether the Accounting Officer contrary to the advice of the ‘Named’ Procurement Officer could go ahead and award the contract
   The Accounting Officer has the authority to award contracts contrary to the advice of the ‘Named’ Procurement Officer. However, if this is done against the advice of PDAC and the ‘Named’ Procurement Officer without just cause and he or she is found to be in breach of the Act, this should be brought to the attention of the Office. Under section 6(1) of the Act (as amended) 2015, the Office has the authority to make any procurement that is in contravention of the Act, void and illegal.
 Do we have to declare both the primary and secondary scoring matrix in our Request for Proposals?
   Evaluation criteria are standards against which bids are evaluated. The purpose of establishing the evaluation criteria is to: i. Compare the merits of offers that can vary widely in form and substance. ii. Minimise the public bodies risk that the selected supplier will not be able to perform the contract satisfactorily. iii. Identify the best match to the requirements. Public bodies must publish the evaluation criteria and relative weightings and the manner of application of the criteria in the evaluation procedure. Public bodies must only assess the offers received against the criteria and procedures that have been set out in the solicitation documents.
 In what instance is review of the ‘named’ Procurement Officer's recommendation required by the Procurement and Disposal Advisory Committee (PDAC)?
   Each public body must set out in its Handbooks and Special Guidelines the thresholds and delegation of authority pertaining to the limits for approval of the, ‘Named’ Procurement Officer, PDAC and the Accounting Officer or equivalent. The Office recommends that PDAC review procurement activities that are of medium to high risk and value, taking into consideration the organisational structure of the public body and the nature of the procurement activity.
 If during an evaluation process the financial documentation in respect of one of the tenderers appears fraudulent how should that be treated with by the committee and by the Procurement Officer in the evaluation report?
   If during the evaluation of a suppliers’ or contractors’ financial submission, the evaluation committee determines that the documentation or information provided is fraudulent, the evaluation committee must conduct its due diligence with the necessary financial institutions and have the documents audited. If the findings of the investigation or audit report are that the documents are in fact fraudulent, the public body has recourse under section 59 (7) of the Act which provides 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 Office for action.”
 Should members of the evaluation committee be approved by Accounting Officer or by the Chief Secretary (Tobago)?
   The evaluation committee must be recommended by the ‘named’ Procurement Officer and approved by the Accounting Officer or equivalent within the public body.
 A bidder submits documents for a procurement process and meets the initial criteria. However, during the evaluation it was found that some of the copies has documents within which were not signed or missing a page, should it be rejected?
   The preliminary examination of offers excludes offers from further consideration that do not meet the mandatory criteria specified in the solicitation documents. Some examples of mandatory requirements are that offers: i. have been properly signed ii. are accompanied by the required offer securities iii. are accompanied by the required documentation iv. are complete and v. validity period conforms with requirements etc. This is a pass/fail exercise. Submissions that do not meet the mandatory requirements are not acceptable and are rejected and therefore will not be considered further in the evaluation process. The rejection of offers should be documented in writing. If an offer passes the preliminary stage notwithstanding the mandatory requirements have not been met, then the submission ought to be deemed non-compliant and not evaluated further.
 There is a requirement for a subject matter expert on the evaluation committee, who defines the qualifications and experience of the subject matter expert?
   The ‘named’ Procurement Officer in consultation with the Accounting Officer should determine the level of qualifications and experience of the subject matter expert. If the required expertise does not exist within your organisation you can outsource and hire a technical expert or request the required technical expertise from another public body for this particular purpose.
 Is it acceptable to recommend persons to sit on the evaluation committee who are involved with the preparation of tender document?
   Evaluation is conducted by a designated evaluation team and in accordance with the public body’s approved Handbooks and Special Guidelines, using the evaluation criteria and method pre-determined in the solicitation document in order to conduct a fair and unbiased evaluation. The evaluation process also needs to be transparent, and therefore each step of the process must be documented in an evaluation report which subsequently is the basis for the recommendation of award. If the person who prepared the solicitation document is required to sit on the evaluation committee, they may do so as an observer. In any event, it is recommended that everybody involved in the evaluation process signs a declaration of confidentiality, impartiality, and no conflict of interest regarding each particular evaluation and members should indicate any conflict of interest immediately to the ‘named’ Procurement Officer.
 If a requested debriefing is not provided within the standstill period and the supplier or contractor does not report this to the Office, can the public body proceed to award the contract? Is there a penalty to the Office if they do not step in and ensure that the debriefing happens and is there a body overseeing the Office ensuring that they do?
   Debriefing is the act of informing suppliers or contractors that were not selected during a procurement process, of the reasons why they were not selected. Section 35(2) of the Act provides that “A procuring entity shall promptly notify each supplier or contractor who presented submissions of its decision to accept the successful submission at the end of the standstill period”. Following the issuance of the Notice of Decision to Award, an unsuccessful supplier or contractor may request from the procuring entity additional debriefing on the procurement process and outcome. Where the supplier or contractor determines that it wishes to have further debriefing, its written request must be made to the procuring entity within three (3) working days from dispatch of the Notice of Decision to Award the contract to the successful supplier or contractor. The procuring entity may facilitate the debriefing orally in a face-to-face meeting, or in writing. Discussion with unsuccessful bidders may include the following: a) The procuring entity’s requirements as outlined in the solicitation documents; b) The procurement, including the evaluation process; c) The strengths and weaknesses of the proposal submitted by the unsuccessful parties, as it relates to the procuring entity’s requirements.” (General Guidelines, Standstill Period, pgs. 7-8) Once a public body complies with section 35 (2) of the Act and the Standstill Period Guidelines issued by the Office, the public body may proceed with awarding the contract. If however, the aggrieved supplier or contractor brings a complaint to the Office of not being provided with a requested debriefing, and an investigation by the Office reveals that the public body did not comply with the requirements for a debriefing, the Office will take any action it deems necessary to ensure that the objectives of the Act are observed. The (Amendment) Act No. 5 of 2016 establishes the Public Procurement Review Board which is tasked with reviewing the decisions made by the Office.
 Where the FIDIC form of contract is used in construction, how can we effectively manage the contract in the case of a dispute?
   The FIDIC suite of construction contracts is written and published by the International Federation of Consulting Engineers. The FIDIC suite of contracts now covers a wide range of projects and methods of procurement. FIDIC has various forms of contracts (e.g. Green Book, Red Book, Yellow Book, Silver Book, White Book) which all contain standard dispute resolution clauses. If a dispute arises between a public body and a supplier or contractor while carrying out a project using a FIDIC form of contract, standard dispute resolution procedures will be available. For instance, when using the Red or Yellow Book, parties to a dispute may seek a resolution from the Contract Engineer, the Dispute Adjudication Avoidance Board (DAAB) (previously referred to as the Dispute Adjudication Board), or, as a last resort, arbitration under international rules. Ultimately, the dispute resolution procedure is always under the control of the parties, who may adapt the procedure to suit their needs under the Particular Conditions of contract. Some ways that public bodies can effectively manage a FIDIC contract in the case of a dispute are as follows: i. Install an effective claim or dispute management process from day-one and maintain it throughout the entire project; ii. Ensure that the supplier or contractor provides clear contacts for claim related issues; iii. Make sure the FIDIC dispute management bodies (standing DAAB) are set up at the beginning of the project and not only after a claim has escalated; iv. Ensure claims submitted by the public body are well founded; v. Keep proper records (procurement proceedings) and allocate sufficient resources to ‘paper trail’ and minimise staff changes during the duration of the contract period; vi. Ensure strict compliance with notice requirements; vii. Seek legal and/or expert advice early, as this can clarify the viability of claim; and viii. Remain open to pragmatic solutions
 What are the criteria for application of the standstill period? Is it for all tenders even if the tender ranges vary by company?
   A standstill period is defined in section 4 of the Act as a period “…during which a procuring entity cannot accept the successful submission and suppliers, or contractors can challenge the decision so notified.” The criteria for application of the standstill period is set out in the Act. Section 35(2) of the Act states that “A procuring entity shall promptly notify each supplier or contractor who presented submissions of its decision to accept the successful submission at the end of the standstill period”. Further sections 35(4) and (5) state that the notice referred to in 35(2) shall not apply where a public body determines that urgent public interest considerations require that the procurement proceed without a standstill period. The decision of a procuring entity that urgent public interest considerations exist and the reasons for the decision must be included in the record of the procurement proceedings. If a public body requires certain threshold valuesto be applied to the standstill period requirement, this must be detailed in the public bodies Special Guidelines, which would require the approval of the Office.
 Does the Board of Directors have any input, in the bid evaluation and award process?
   The responsibility of the Board of Directors is one of governance. The Board of Directors should not be involved in the operations of a company which includes the procurement functions within public bodies. Of note, the Board of Directors should not play a role in the evaluation and award process within a public body. The Board of Directors being responsible for governance and oversight would be accountable for approving a public body’s Handbook and Special Guidelines. A public body may keep its Board of Directors informed on critical operational decisions.
 STAGE 4 - Contract Management to Close-out
 Is contract management a function of the Procurement Department? How much of a role does the Procurement Department, User Department and the Legal Department have in contract management?
   “Contract Management is an 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 Department, and the Legal Department (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 Departments 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 Department 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 Department has the responsibility of clearing invoices and managing budgets. (UN Procurement Practitioner’s Handbook, 2017, p. 121). All Departments will be responsible for maintaining records in relation to their respective responsibilities.
 With reference to the procurement cycle, if a public body is not satisfied with the performance of a supplier or contractor, should the supplier or contractor be paid prior to a report being done by the public body?
   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 or contractorrelations, 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 Department of any discrepancies or areas of dissatisfaction with a supplier or contractor’s performance under the contract. Where supplier or contractor 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.
 Is there a supplier or contractor evaluation programme that may be recommended?
   Each Public Body is required to develop a supplier or contractor 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 or contractor evaluation programme.
 Would the Office propose a supplier or contactor performance model or module or evaluation sheets or templates that will assist organisations in evaluating suppliers or contractors for performance?
   The General Guideline, Management and Monitoring of Procurement Contracts and the General Guideline, Procurement of Works provide a framework for contract and supplier or contractor performance monitoring, the evaluation sheets and templates will be provided on the Office’s website www.oprtt.org at a later date.
 How to differentiate a variation to an existing contract from a new contract?
   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.
 Supplier or Contractor performance is subjective and dependent on the entity's standard. How would the Office guard against improper disqualification and de-listing? If a supplier or contractor is made ineligible by one public body and they are satisfying five other contracts with five public bodies and they are ineligible, do you then stop all other contracts?
   Supplier or Contractor 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 Act defines ‘ineligibility list’ as “a list of suppliers or contractors who shall not participate in procurement proceedings”. Section 58(3) of the 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 or defined in the said Regulations.
 Will the Office require entities to submit the selected contractors for specific projects periodically?
   In keeping with section 36 of the Act, all public bodies are required to promptly publish on its website or in any other electronic format, notice of awards of procurement contracts or framework agreements, specifying the name of any supplier or contractor with whom the procurement contract or framework agreement was entered into, the goods or services to be supplied, the works to be effected and, in the case of procurement contracts, the date of the award of the contract and the contract price. Additionally, in keeping with section 37, of the Act, all public bodies are required to, “no later than three (3) weeks after the end of each quarter, a report of all contracts awarded during the immediately preceding quarter”.
 STAGE 4 - Retention and Disposal
 Should the area of disposal reside with the Procurement Department or other departments, like Finance or Facilities?
   According to Section 61(2) of the Public Procurement and Disposal of Public Property Act, 2015 (as amended) (the Act) “…a public body shall have a Procurement Officer who shall be responsible for public procurement and the disposal of public property for that body and shall notify the Office, in writing, of the name and designation of its Procurement Officer”. The Procurement Officer may engage the services of other members of staff but cannot give up the responsibility of being the person ultimately responsible for the retention and disposal of public property. For further information regarding the Disposal Committee, Procedure for Disposal and Prohibition of disposal within a public body under the Act, see sections 55-57.
 If public bodies currently have items to dispose of and already has approval to do so, can the public body go ahead and do so or adopt the new information under the Act?
   The sections of the Act that pertains to the retention and disposal of public property have not been proclaimed. As such, a public body will be required to follow its existing rules and procedures governing the retention and disposal of public property. Notwithstanding the foregoing, the Office recommends that public bodies incorporate the requirements for the retention and disposal of public body under the Act within existing rules and procedures.
 Has the Office changed its position regarding section 57 of The Act?
   Section 57 of the Act states: “A public body shall not dispose of unserviceable, obsolete or surplus stores and equipment to an employee of the public body or a member of a board or committee of the public body except as expressly allowed under Regulations”. Of note, section 57 of the Act remains as is. Further, sections 11.10 and 11.11 of ‘The General Guidelines: Retention and Disposal of Public Property’ advises of the general methods and procedures of disposing of public property. Once the public body has identified person(s) in the organisation to dispose to, the public body must notify the Office of the disposal process followed and to whom the item is intended to be disposed to. NOTE: This area is further informed in the proposed Draft Regulations.
 If a motor vehicle that was part of an employee’s compensation package is up for disposal, what process do you follow?
   In this scenario, the process to be followed should be outlined in the public body’s policy on vehicles. If the process has not been outlined in the company’s policy on vehicles, the process to dispose can be found in sections 11.10 and 11.11 of the ‘General Guidelines: Retention and Disposal of Public Property’. The public body must notify the Office of the disposal process followed and to whom the item is intended to be disposed to. NOTE: This area is further informed in the proposed Draft Regulations.
 For items donated to a public body and there is no record of original costs, how does one dispose of such items?
   The disposal process outlined in the ‘General Guidelines: Retention and Disposal of Public Property’ also applies to donated assets, notwithstanding that records of the said items are non-existent. Although the price or the value of the items cannot be quantified, the public body must conduct research and estimate a value based on depreciation rates. For items public bodies may receive via donation, it is recommended that the date the items were donated, a description of items, the value of the items and the company the donation came from must be recorded by the public body.
 Does the value of $100,000 mentioned in the Disposal presentation refer to a unit cost or accumulated value of the disposal?
   Yes, it is accumulated value per category whether it’s single unit or in a group.
 What do you call dividing up computers into two groups for disposal making it fall below the $100,000 mark?
   Whilst a public body may group items to dispose into categories, a public body should not divide or split any quantity of items to be disposed of to avoid reporting requirements.
 Is there a recommended depreciation value per category of assets and property to dispose of?
   There is no standardised method at this time to calculate the net book value of an item. It will be the role of the Accounting Unit of the public body to determine the depreciation value and associated methodology. Of note, the Office is in the process of looking at an Integrated Financial Management Information System (IFMIS) for all public bodies, which will provide an opportunity to standardise certain treatments in terms of depreciation and method of the depreciation value.
 Does the OPR have a recommended software for asset/inventory management?
   At present, the Office does not have a recommended software for asset/inventory management. However, the Office is informed that the Government of Trinidad and Tobago is working on a project for Integrated Financial Management System (IFMIS), E-procurement as well as an Asset Management System.
 Why is there a need for a disposal committee when the PDAC provides the approval of the process of the subsequent disposal?
   The Disposal Committee is established by section 55 of the Act which states “A public body shall establish a disposal committee comprising not less than three officers for the purpose of recommending the best method of disposing of unserviceable, obsolete or surplus stores or equipment.” The Disposal Committee is an independent committee and its functions are “to carry out physical inspection of the item; assess costs and benefits of disposal options; recommend the best disposal strategy or option; identify storage and transport issues; undertake disposal process; and evaluate, review and report on executed disposal process.” (The General Guidelines: Retention & Disposal of Public Property, p. 57). The role of Procurement and Disposal Committee (PDAC) is “to review the disposal strategy submitted by the ‘named’ Procurement Officer/Disposal Committee. Once the committee has no objections, the ‘Disposal Strategy Report’ is signed and forwarded to the Accounting Officer and or equivalent for final sign off accordingly.” (The General Guidelines: Retention & Disposal of Public Property, p. 57).
 How do you treat with stolen items under the disposal process?
   If an item was stolen, then the public body cannot dispose of that particular item and same will need to be written off. All public bodies must ensure that all State-owned assets/inventory are properly secured to avoid theft and security breaches and internal procedures should document the necessary steps to be taken to report and treat with stolen items.
 What is the difference between personal and real property?
   ‘The General Guidelines: Retention and Disposal of Public Property’ describes personal property to include “all other property, besides real property, both tangible (stores, equipment and inventory, stocks, bonds, artwork etc.) and intangible (services, intellectual property etc.)”. Real property refers to “land and items that are permanently affixed to the land, including trees, buildings and heavy machinery affixed to the land” (General Guidelines: Retention and Disposal of Public Property p.8).
 Who should identify the different levels of authority for disposal?
   The delegation of financial authorities’ is the responsibility of the Accounting Officer or equivalent and the Board.
 Should there be a dollar value range to sell items to employees?
   There are specific requirements to be undertaken when disposing of an item to an employee, a member of the Board or any such person. The disposal process outlined in ‘the General Guidelines: Retention and Disposal of Public Property’ should be followed regardless of the value of the item.
 How do you dispose of obsolete or unserviceable equipment that is unable to sell?
   If the options for disposal of public property outlined in ‘the General Guidelines: Retention and Disposal of Public Property’ have been exhausted, a recommendation can be submitted to the Accounting Officer or equivalent referencing the new disposal strategy. Proper documentation should always be maintained of both the old and new strategy in the event of an audit procedure.
 For smaller organisations can there be one person responsible for both personal and real property?
   Section 61 (2) of the Act states that"…a public body shall have a Procurement Officer who shall be responsible for public procurement and the disposal of public property for that body and shall notify the Office, in writing, of the name and designation of its Procurement Officer.” In this regard, the Procurement Officer is responsible for both personal and real property.
 If a State company wishes to "donate" a high value piece of equipment, what documents should the receiving entity (the named Procurement Officer) ensure is in place?
   Depending on the type of equipment, the receiving entity will have to ensure that they receive an operating manual, parts list, diagram, maintenance log or other instructional publication along with the equipment itself and ensure they sign a ‘Transfer of Excess Property’ form as stated in the General Guidelines: Retention and Disposal of Public Property (page 50).
 How do you treat with or dispose of leasedvehicles where the company has a buy-back option and the vehicles are owned by the lease company?
   The lease agreement will stipulate the terms and conditions for which the public body can purchase the leased vehicle during or after the lease period.
 How can a public body ensure that persons who are contracted to dispose of items externally do so ethically?
   To ensure that a supplier or contractor disposes of items in an ethical and environmentally friendly manner the following can be adopted: 1.During the pre-qualification or pre-selection process, suppliers or contractors should be assessed based on environmentally friendly disposal methods; 2.When outsourcing to a supplier or contractor ensure that they are compliant with Environmental Management Authority (EMA) rules for disposal; 3.Request destruction certificates from supplier or contractor upon disposal of the items; and 4. Request to view the disposal of items to ensure that they disposed of as stipulated by the public body.
 With respect to the disposal process is there any input from the organisation’s Audit Department or do the committees serve as the check and balance?
   There is no input from the Audit Department in the disposal process, however the role of Audit is to ensure that the process stated in an entity’s guideline is followed accordingly. Further, the roles of the ‘named’ Procurement Officer, the Disposal Committee, the PDAC and Accounting Officer (or equivalent) serve as a check and balance within the disposal process.
 In coming up with the Act, what was the idea behind that fellow workers can get disposable items from Ministries. What was the thinking behind that?
   The Act does not specifically state that you can dispose to employees. Coming out of the Office’s consultation sessions which were conducted in 2018, it was brought to the Office’s attention that some Public Bodies were already disposing to employees. Therefore, the Office acknowledged this and decided to bring structure and guidelines to this practice by outlining the mechanism and manner in which public property can be disposed of to an employee of a Company in ‘the Public Procurement and Disposal of Public Property Draft Regulations’.
 On a point of recycling. Is there a mechanism to highlight to public entities, items that have been listed as ‘reaching the end of its usable life’ but may be useful to another public entity as they may have the identical item that is nonfunctional due to a small part being damaged.
   There are no mechanisms highlighting the recycling of equipment parts to other public bodies. Section 4 of the Act defines ‘disposal of public property’ to “include the transfer without value,sale, lease, concession, or other alienation of property that is owed by a public body. As such, if a public body wishes to dispose of an item to another public body which may ‘have the identical item that is nonfunction due to a small part being damaged”, that public body must ensure that its disposal process is in keeping with the Act, Regulations and Handbook and the General Guidelines: Retention and Disposal of Public Property.