PROCUREMENT(TENDERING)

QUALIFICATION REQUIREMENTS (FOR CONTRACTORS)

TENDER DOCUMENTS

THE BIDS

COMPLAINTS AND APPEALS

 

 

  

Procurement (tendering)

Director for Management of Issyk-Kul Development Fund (hereinafter known as the Director) is the head of the entity that determines the how the funds are spend. The decision as to which company is successful is made by Tender Committee, with there being a separate committee for each project, in accordance with the order of the Tender Committees responsibilities and duties. The composition of the Tender Committee shall consist of no less than three members, one member of which must be an expert in procurement and has a certificate to confirm this (having been trained on public procurement by the appropriate department at the Ministry of Finance). The Tender Commission Director cannot be a party or affiliated to any party applying for any tender.

Ministry of Finance, as the authorized government body, is develops the overall instructions to bidders, defines the subject of procurement, the deadlines, etc. Since 2014, these functions have been assigned to the Department of Methodology and the analysis of public procurement is overseen Ministry of Finance.

The Tender Committee has the following roles:

• determining the method of procurement;

•  preparing the tender documents;

•  organizing the publication of Procurement Notices in the regional newspapers "Vesti Issyk-Kul" (in Russian) and "Issyk-Kөl zhaңylygy" (in Kyrgyz), as well as the online portal of the Ministry of Finance "Electronic government procurement KR» (www . zakupki.okmot.kg) or by sending an invitation to apply for contract directly to potential suppliers;

•  to hold the opening of tenders within the period specified in the tender documents;

•  assessing the tenders, using the procedures and criteria set by the regulation documents and prepare an evaluation report on the results of the tender;

•  to make a decision on awarding the contract to the winner, on behalf of the Directorate;

•  considering all complaints (including those  of contractors) and deciding appropriate action (if any) in accordance with Kyrgyz law;

•  cancelling trade if tender was won in violation of the law ‘On Public Procurement' 

•  publishing reports on the results of procurement procedures;

•  Ensuring the collection and storage of all tender documents from the initial stages, for a minimum three years;

 

 

State and municipal officials, employees and members of the Directorate of the Tender Commission shall be prohibited from:

• exerting any influence on the procurement procedures in the interests of any party;

•  participate as suppliers (contractors) in the tender process;

•  assist or enter into procurement contracts between the organizations for which they work, or the organizations with which they are affiliated to either as representatives, partners, founders, shareholders, stakeholders or other officers;

•  participate in decisions on procurement procedures if they are associated with any of the participants in the procurement by degree of kinship, or property; or if they have either a direct or indirect interest in the results of ongoing procurement;

 

In the case of a violation, they shall be liable to be suspended either temporarily or permanently according to the legislation of the Kyrgyz Republic by the decision of the Directorate or by the decision of the appropriate public authority.

Liability (including administrative) shall rest with members of the Tender Commission. The Directorate is involved in deciding whether provisions in public procurement legislation have been satisfied. The opinion of Individual members of the Tender Commission shall be noted in the minutes of the procurement proceedings.

 

 The Directorate can carry out the procurement proceedings by two methods - an auction with unlimited participation, and restricted tendering.

Restricted tendering is conducted if:

 

-          The costs necessary to examine and evaluate a large number of tenders would be disproportionate to the value of the goods, works or services;

-          The goods, works or services required have a significant level of technical complexity and thus can only be carried out by a limited number of contracors.

 

 When trading with limited participation, the Directorate will solicit a sufficient number of suppliers in order to ensure competition (a minimum of three). When this is the case a Procurement Notice will be published in the media.

When participation by an unlimited number of suppliers occurs, any contractor is allowed to submit an application. In any case, if there is only one supplier bidding for a contract the process is declared invalid.

 

QUALIFICATION REQUIREMENTS (for contractors)

 

To participate in the procurement proceedings, suppliers (contractors) must meet the following qualifications:

 

-          they must have the technical and professional competence; experience and reputation in their field; financial resources to cover costs until possible reimbursement; correct equipment and other material facilities necessary to fulfil the contract in accordance with the requirements of the tender documentation;

-          they must not be insolvent or bankrupt;

-          there is no order against them by the court or a judicial officer; the company property should not be subject to judicial control or investigation;

-          their business activities have not been suspended, and they are not subject to any such lawsuits;

-          their obligations to pay taxes and other obligatory payments to the Kyrgyz Republic shall be carried out in full;

-          the suppliers or contractors, their senior staff and / or their affiliated suppliers themselves must not be in any legal dispute for at least three years prior to the commencement procurement proceedings with regards to giving false information or misrepresentation and misleading with respect to their qualifications in order to conclude the procurement contract;

-          they must be legally competent and sound in order to enter into any procurement contract.

 

All the relevant certifications needed are laid out in the solicitation documents.

Procurements concerning less than minimum threshold requirements are exempted from certain criteria.

The contractor acquires the status of an applicant from the moment of acquisition of tender documents.

The status of an applicant is lost in the following cases:

• at the request of the applicant - at any stage of preparation;

•  by failing to guarantee their bid when submitting the tender;

•  if they are found to be in violation of the Law "On Public Procurement"

 

Applicant is entitled to receive from the Directorate comprehensive information regarding the conditions and specifics of procurement procedures.

 

 

TENDER DOCUMENTS

Tender documents are defined as a package of documents provided by the Directorate to the contractor for the preparation of submitting an application, and include the conditions and procedure for the tender process. 

Management must submit tender documents to interested parties (suppliers, contractors etc.) at the earliest possible opportunity.

When trading with limited participants, solicitation documents, including specifications together with an invitation to apply for contracts should be sent directly to the contractors.

For the provision of tender documents containing the main provisions for the tender, the procuring entity may charge a non-recoverable fee, which shall not exceed the amount necessary to cover the costs of printing and mailing the relevant documents.

It is compulsory for the tender documents to include the following:

-          Instructions on how to prepare tenders;

-          criteria and methods of assessing the providers (contractors) qualifications as required by law;

-          requests for documentary evidence and/ or other information that must be submitted by suppliers (contractors) to confirm their qualifications;

-          descriptions regarding the required technical nature of the goods, works or services, including technical specifications, plans, drawings, and sketches; quantity of goods; the quality that these must match; additional services that need to be provided under the contract; the place where the work to is to be performed or services rendered;

-          desired and / or required time scale of the contract;

-          description of all the criteria, except for the prices, which are used in the evaluation of tenders by the Directorate and Committee, including the priority of such criteria, which must be expressed in monetary terms, and the provision of benefits, if any;

-          provisions as stipulated by the Directorate that are required to be included in the written contract;

-          description of the part or parts of already purchased goods, meaning contractors may only submit bids for only a portion of the goods, works or services;

-          the way of calculating and expressing the value of the tender, including an indication as to whether the price contains other elements, apart from the cost of the goods, works or services themselves if any, these may include (but are not limited to) transportation costs, insurance charges, custom duties and taxes;

-          if there is a need to include foreign currency then the appropriate exchange rate will be or the means of calculating the appropriate rate;

-          requirements for the nature of, amount and other principal terms of the bid guarantee and performance of the contract, as well as the validity of such guarantees;

-          the exact location, date and time timing of the submission of tenders;

-          description of the procedure for clarification of tender documents if need be requested by the supplier (contractor), as well as a statement that whether the procuring entity intends at this stage to meet with the suppliers (contractors) at any stage of the process;

-          period during which tenders are valid;

-          procedures that will be used at the opening and examination of tenders;

-          the language or languages ​​in which tenders must be prepared;

-          the name, title and address of one or more employees of the Directorate, who are authorized to communicate directly with the suppliers (contractors), as well as means on how to contact this member;

-          Notice of the right of suppliers (contractors) to seek review of actions or decisions undertaken by the Tender Commission that are felt to be illegal or in violation of the rules during the procurement process,

-          general conditions of contract procurement, when or if the Tender Commission or Directorate requires signature of the contractor(s). 

 

In the procurement of works and/ or services, management must have appropriate documentation on the subject of means of procurement, financial estimates and list of quantities.

The supplier may request clarification of tender documents from the Directorate. The Directorate must respond within 3 working days with an appropriate explanation as requested. The Directorate must not disclose the source of the inquiry to any other potential contractors who have submitted tenders.

In certain cases, management may at any time prior to the deadline for submission of tenders, modify the solicitation documents by issuing an addendum. This must be immediately be communicated to all suppliers, and becomes binding in the same way as the original tender documents.

Management must not establish criteria, requirements or procedures that discriminate suppliers (contractors) unless there is clear objectionable validity.

Management may suspend the supplier (contractor) from participation in procurement procedures if:

-          they have submitted false information about their qualifications;

-          if the supplier (contractor) does not satisfy the qualification requirements;

-          if (contractors) improperly performed during at least one public procurement contract within the last two years preceding the commencement of the procurement procedure;

-          if (contractors) are declared bankrupt or are in the process of bankruptcy;

-          if (contractors) have tax arrears and/ or other mandatory payments are due.

 

 

The bids

A tender is the proposal for the supply of goods, services, performance of works and possibly consulting services.

 

Deadline for bids

The Directorate specifies the exact date and time of the deadline for submission of tenders. Tender received after the deadline shall not be opened and will be returned to the supplier.

The Directorate who establishes the deadline for submission of tenders must observe the following rules:

-          in the case of unlimited participation the deadline must be at least 3 weeks after the announcement of the tender;

-          when operating the restricted tendering system, at least 2 weeks must be given from the date of sending invitations to tender and the publication of the advertisement(s) in the media;

In cases where management makes a clarification or modification of the tender documentation, it may extend the deadline for submission of bids, giving suppliers time to account for the changes in their tender bids.

 

Nature of tenders

Tenders shall be submitted in writing and in a sealed envelope. Tenders may alternatively be submitted in any other form specified in the solicitation documents, where one can reliably determine who has submitted the request. After receiving the bid, management provides the supplier with a receipt indicating the date and time when their tender was received. 

 

Validity of tenders

-          Tenders shall be valid for the period specified in the tender documents. Calculation of this period starts from the date of opening of tenders;

-          Before the expiry of bids Directorate may request contractors extend the time period as per their discretion with a valid reason;

-          In case of an application being rejected by the Directorate, the supplier does not lose the right to guarantee their tender;

 

Contractors who have agreed to extend the validity of their tenders, extend the validity of the tender and its collateral, or provide a new guarantee regarding maintenance of tenders to cover the extended period of validity of their bids.

Suppliers may modify or withdraw their tender prior to the deadline for submission of the tender, without losing the right to return the collateral of their tenders.

 

Margin of tenders

The supplier, when submitting the tender must at the same time establish a guarantee for their bid. This amount is determined by the Tender Commission and Directorate and shall not exceed 2 percent of the value of goods, works and services offered by the suppliers (contractors) in the tender proposal. The validity of the bid security should be valid for at least 2 weeks after the expiration of tenders.

The bid security for the tender is paid by supplier as a guarantee that:

* They do not withdraw or modify any part of the application, including the price, whilst participating in the tender or after the deadline for submission of such requests;

* In the case of winning the tender they will sign an agreement on public procurement and enforce a public procurement contract, as provided the tender documents.

 

Form of collateral is determined by the application Directorate (this may be in the form of cash, bank guarantees, shares, etc.)

For procurement below the minimum threshold, the procedure of the bid security may not apply.

Management must return the bid security in the following cases:

* Expiration of the bid security as specified in the tender documentation;

* The concerned party enters into a procurement contract and the provision of collateral performance of the contract is not met, unless the provision of such collateral is provided in the tender documents;

* If the concerned party opens any tender prior to the deadline for submission of tenders;

* They choose to terminate procurement procedures without a contract procurement.

 

The applicant loses the right to a refund of the bid security only in the following cases:

* Refusal to sign an agreement on the terms provided in its application;

* Failure to provide warranty contract enforcement;

* Withdraws the applicant from the process before the agreed deadline.

 

Opening of tenders

Tenders shall be only opened be opened at the time and place specified in the tender documents. The opening of tenders must coincide with the deadline for submission of tenders.

The procurement organization (ie. the Tender Commission) will open the tenders infront of all interested parties, and anyone is allowed to be present during this process. The filming or audiotaping of this process is allowed. However, the persons attending this meeting must not, under any circumstances, interfere with the work of the Tender Commission.

During the conduct of this process, the only procedures or criteria that may be used are those stipulated by the law - "On Public Procurement"  - or in the tender documents.

There shall be no further negotiation between the procuring entity (ie. the Tender Commission) and any other party, including discussions on price or other changes.

The successful applicant will be the one who substantially matches the criteria set forth in the tender documents and the one seen to have the best value for money, usually the lowest price for the overall project. 

 

Rejection of tenders

Directorate or the Tender Commission may reject a tender if:

-          The applicant or submitted tender is not meet the qualifications set out in the tender documentation;

-          the tender does not fully meet the requirements as set out in tender documents;

-          if the supplier or contractors who have submitted tenders either directly or indirectly offers, gives or agrees to give to any officer, employee of the Directorate or other public authority a ‘reward' or provide a service for the purpose of influencing the decision or the conduct of the Tender Commission or anyone affiliated with it.

 

 

COMPLAINTS AND APPEALS

All bidders who took part in the tender process have the right to submit a letter of complaint (in writing) to the Directorate, stating the reason for their complaint;

Any decision of the tender committee may be appealed, and must be done within 10 days of the publication of the announcement of the results tender process. After this period complaints submitted any participant (ie. contractor) are not considered by the Directorate;

Management must consider the complaint within 3 working days from the date of submission;

The subject of the appeal cannot be:

- The choice of the method of procurement as selected by the Commission if set out in the Tender Documents;

- Encouraging the provision of incentives for domestic or local suppliers (contractors);

- An appeal to change the Directorate due to the rejection of the initial application.

 

A  supplier (contractor) whose interests are affected  as a result of an appeal, is entitled to participate in the review process. If the supplier does not wish to participate, they shall be deprived of their right to file a similar complaint if the decision is changed as a result of the initial appeal.

After considering the complaint, the management responsible shall issue a written decision which states:

- The rationale for the decision;

- Measures aimed at satisfying the complainant in part or in full;

 

If the contractor is not satisfied with the decision or the explanation, they then have the right to appeal to the relevant state authority, in this case the Methodology Department concerned with Public Procurement within the Ministry of Finance; if still unsatisfied a contractor may go through the courts and judicial system in the relevant jurisdiction.

 If the complaint of the supplier (contractor) is upheld by the state body, the authorities may:

- Prohibit the commission of illegal acts by the Directorate or the adoption or use of illegal decisions and illegal procedures if found to be in violation of the Law;

- Fully or partially cancel the decision of the Directorate if deemed illegal;

- Force the Directorate to reimburse the costs incurred by the supplier (contractor) in making the complaint; not however, the potential loss of revenue of profits in connection with the tender in question;

- Decide on the termination of the procurement procedures and whether a re-run of the process is appropriate.

 

A complaint to the appropriate state authority shall be considered if submitted within 15 days from the date when the supplier (contractor) knew or should have known of the circumstances giving rise to the complaint after the conclusion of the procurement contract. After such a time-frame, a judicial process will have to be undertaken in order to appeal the decision.