Public Procurement (Amendment) Act, 2023

This provision amends section 3(2) and (3) of the principal Act by replacing the phrase “defence or international relations” with “defence, currency or international relations.”

Section 4 amends section 4(1) and (2) of the principal Act by deleting the words “and the Treasury” wherever they appear.

Section 12(4) of the principal Act is amended by replacing “Authority” with “relevant approvals authority”.

Standard procurement documents are generally not confidential, but several listed procurement-related documents and post-selection materials are excepted.

This provision amends Section 15(2)(a) of the principal Act by deleting the word “except”.

This section amends Section 17(3) of the principal Act by deleting paragraph (e).

A bidder who contravenes subsection (1) is disqualified, under prescribed procedures, from taking part in any existing procurement proceeding.

This section amends section 19(6) by replacing “person or a relative” with “person, relative or associate”.

This provision replaces section 29(2) and requires a controlling officer or chief executive officer to tell the Authority who is on the Procurement Committee within 14 days of appointment or any membership change.

Section 34 is replaced so that certain procurement stages need prior authorisation from the relevant approvals authority.

This section amends the principal Act by repealing section 36 and replacing it with new text titled “Use of procurement or agent service provider.”

A procuring entity may appoint a procurement agent or procurement service provider to carry out procurement functions on its behalf, subject to the Act and any prescribed requirements.

Section 37 is amended to add a new paragraph on government-to-government procurement.

The provision amends section 39 to limit open national bidding to citizen and local bidders, give citizen bidders priority in bid evaluation, add new cases for subsection (4), and change “shall” to “may” in subsection (7).

Section 41 is amended to limit open national selection to citizen and local bidders, give citizen bidders priority in proposal evaluation, and require a local bidder that wins a contract to partner with a citizen supplier.

This section amends the principal Act by repealing section 48 and replacing it with new text.

Electronic reverse auction may be used only when the procurement can be described in detail, competition is expected, and bid criteria are measurable in money terms; the procuring entity must also have a procurement portal and Authority-approved secure software.

Section 51 is amended to replace “Government agency” with “procuring entity” and to say that Section 89 does not apply to purchases under this section.

This section amends the principal Act by inserting a new section after section 51 titled “Government to Government procurement.”

This section says government-to-government procurement is meant to let a procuring entity buy goods, works, or services from a foreign State and gain that State’s expertise and development experience.

Section 56 of the principal Act is amended by deleting one paragraph, renumbering the remaining paragraphs, and removing specific words from subsection (3).

This section repeals section 66 of the principal Act and replaces it with new text.

A procuring entity must establish an evaluation committee and prepare an evaluation report; it may request bid clarifications, correct arithmetical errors, and do post-qualification, but it may not change bid substance or negotiate with bidders.

This provision amends section 68(4) by adding a new paragraph stating that the lowest evaluated price must be above the market price.

Section 71(2) is amended: the word “ten” is replaced with “five”.

Section 72 is amended so that, for contracts above the prescribed threshold for simplified bidding or simplified selection, any required approvals include legal advice from the Attorney-General.

The principal Act is amended so that “in writing” is added after “contract manager” in section 76(1).

This section amends the principal Act by repealing section 77 and replacing it with new text.

Contract amendments or variations need Attorney-General approval and legal advice; quarterly reports on varied or amended procurement contracts must be sent to the Authority.

This provision amends section 84(4)(b) of the principal Act by replacing the word “ten” with “fifteen”.

A bidder may participate in procurement only if it meets the listed eligibility conditions, including legal capacity, solvency, tax and social security compliance, no misrepresentation, no relevant recent convictions, no conflict of interest, and, for foreign bidders, partnership with a citizen supplier unless an exception applies.

A procuring entity must require bidders or suppliers to subcontract part of the value of certain works procurements to citizen bidders and suppliers.

This amendment changes the penalty in section 97 to a fine of two million penalty units or 5% of a bidder’s bid sum, and makes a second-time liable bidder permanently barred from public procurement.

This section amends the principal Act by repealing section 99 and replacing it with new text.

A bidder or supplier who is aggrieved by a decision of the Authority may refer the matter to arbitration within 10 working days of that decision.

This provision amends section 100 of the principal Act by changing two references: one from “ten” to “five” in subsection (3), and one from “ten” to “fifteen” in subsection 4(c).

Section 105 is amended, and an appropriate authority must submit a report to the Authority within 14 days after receiving a recommendation from the Authority.