Essay: Public Procurement Regulatory Authority

EXECUTIVE SUMMARY
The main purpose of this research is to examine the facts revolving around if the Federal PPRA & Provincial name sake Authorities work in tandem; Rules/regulations on many left over areas like Contract Management, Auction, Monitoring & evaluation and Inspection can also be framed uniformly. Many provisions such as Procurement Committee, Grievance Redressal mechanism, Black listing and Contract administration are required to be brought in line.
Public Procurement Regulatory Authority ordinance 2002 enforced by Federal Government and the Sindh Public Procurement Act 2009 followed by Rules & Regulations/guidelines have been practiced by Public Servants, Government departments and Contractors/ Consultants. While following these set of rules there is a need for improvement as well as harmonization so that certain hindrances and difficulties could be removed. These Rules and regulations are dynamic & progressive in nature hence can be improved & harmonized keeping in view the best practices. Before framing their own public procurement law and rules, Sindh government began to follow the Federal Government’s Public Procurement Authority Ordinance, 2002 and Federal Public Procurement Rules 2004.
New Rules were framed which were though very detailed but were somewhat stricter in nature.
The new laws were better in terms of few changes such as addition of functions:
1. Management of capacity building activities;
2. Provision of a dispute resolution mechanism;
3. A board of directors with Private members
4. Inclusion of district governments and
5. Public private partnership being brought in the domain of the authority.
There are many areas where detailed procedures/ Regulations are still required; such as Auctions, Regrouping & splitting, Blacklisting of Contractors, procedures of forfeiture of bid security, post qualification, Pre-qualification, rate contract, variations & amendments in contracts Inspection, M&E, Contract management and Contract Administration. The reform process started from 1990’s has yet to bear fruits. Quick formation of guidelines & rules depend on leading role from PPRA. Presently these Authorities are busy in outpacing each other and introducing e-Procurement, Public Procurement Performance Management System and certification requirements for Procurement staff. All of them have agreed to National Procurement Strategy which advocates harmonization of Procurement regimes.
The harmonization of rules, evolution of regulations & Guidelines further explaining the rules and capacity building exercise for professional should start for efficient service delivery for poor masses of this country through Public Sector. There need to be a marked difference in Procurement solutions today as compared to the days of Manual & GFR.
GLOSSARY OF TERMS
PPRA : Public Procurement Regulatory Authority
SPPRA : Sindh Public Procurement Regulatory Authority
KPPPRA : KP Public Procurement Regulatory Authority
BPPRA : Baluchistan Public Procurement Regulatory Authority
PPR : Public Procurement Rules
SPPR : Sindh Public Procurement Rules
M&E : Monitoring & Evaluation
HEC : Higher Education Commission
PSQCA : Pakistan Standards & Quality Control Authority
ICB : International Competitive Bidding
NCB : National Competitive Bidding
RFQs : Request for Quotation
QCBS : Quality & Cost Based Selection
LCS : Least Cost Selection Method
QBS : Quality Based Selection
DSM : Direct Selection Method
CQS : Consultant’s Qualifications Selection
UNCITRAL : United Nations Commission on International Trade Law
B&R Code : Building & Roads Code
GFR : General Financial Rules
NPS : National Procurement Strategy
RFP : Request for Quotation
NIT : Notice Inviting Tender
EOI : Expression of Interest
APP : Annual Procurement Plan
PC : Procurement Committee
GCC : General Conditions of Contract
CRC : Complaint Redressal Committee
DRAP : Drug Regulatory Authority of Pakistan
Table of Contents
PREFACE i
EXECUTIVE SUMMARY iii
GLOSSARY OF TERMS v
INTRODUCTION 1
Research Methodology: 2
Statement of Problem 2
Scope of Study: 3
Hypothesis 3
SECTION – I 4
Brief Summary 4
1.1 Situation Analysis; 4
1.2 Definition of Public Procurement: 4
.1.4 Principles of Public Procurement: 7
1.5 Stake Holders in Public Procurement: 8
1.7 Road Map of Reforms: 10
1.8 Procurement Planning: 11
1.9 Procurement Committee: 11
1.10 Record Keeping 12
SECTION – II 13
STATUS OF RULES 13
2.1 Transparency through Publication: 13
2.2 Open Competitive Bidding: 13
2.3 Bid opening and evaluation: 14
2.4 Award of contract: 14
2.5 Grievances/complaints: 15
2.6 Blacklisting: 15
2.7 Effective Control Systems: 16
2.8 Degree of access to information/transparency: 16
2.9 Accountability: 17
1.10 Variation and Repeat Orders. 17
SECTION – III 19
Analysis 19
3.1 Analysis of Responses: 19
SECTION IV 23
Analysis on the basis of Comparison 23
4.1 Public Procurement Rules 2004 with Sindh Public Procurement Rules 2010: 23
4.2 Baluchistan Public Procurement Rules 2014 with KP Public Procurement of Goods, Works and Services Rules, 2014: 25
CONCLUSION 27
RECOMMENDATIONS: 28
BIBLIOGRAPHY 29
ANNEXURE – I 30
EXISTING LEGAL FRAMEWORK IN PAKISTAN 30
Annexure-II 31
Questionnaire 31
APPENDIX-I 32
Comparison of Public Procurement Rules at Federal and 32
Sindh Levels 32
APPENDIX-II 63
COMPARISON OF PUBLIC PROCUREMENT RULES OF BALOCHISTAN AND KPK 63
INTRODUCTION
Public Procurement is the procurement of Goods, Services and works made on behalf of any Government organization. It accounts for around 15% of the World’s GDP and approximately 50% of the regular Budget, involving Tax Payers money; hence the Public Servants are expected to carry out this exercise efficiently, transparently and honestly. Regulatory framework of Public Procurement has been progressively established worldwide to promote the standards of Transparency, value for money & fairness and to rule out corruption from the system.
The United Nations Commission on International Trade Law (UNCITRAL) was established by the United Nations General Assembly by its Resolution 2205 (XXI) of 17 December 1966 “to promote the progressive harmonization and unification of international trade law”.
In 1994 UNCITRAL Model Law on Procurement of Goods, Construction and Services was framed which was amended in 2011. The 1994 text was recognized as an important international benchmark in procurement law reform. The principles and main procedures from the 1994 text have not been changed. The Model Law on Public Procurement contains procedures and principles aimed at achieving value for money and avoiding abuses in the procurement process. The text promotes objectivity, fairness, participation, competition and integrity towards these goals. Transparency is also a key principle, allowing visible compliance with the procedures and principles to be confirmed .
Pakistan also promulgated the Public Procurement Ordinance in 2002 and framed Public Procurement Rules in 2004 at the insistence of donor agencies. All four Provinces followed the lead from Federal Government and have periodically enforced their own Public Procurement Acts & rules. These Rules are broadly based on a mother Law which is the UNCITRAL model Law of Public Procurement. It contains procedures and principles to get best value for money and to avoid abuses of the procurement process. These rules promote Transparency, fairness, and competition and also the principles for visible compliance of procedures.
Prior to establishment of Public Procurement Regulatory Authority (PPRA), public procurement was governed under the West Pakistan B & R code, General Financial Rules & delegation of Power rules, Pakistan Engineering Council guidelines and the Purchase Manual. During 1990s, the significance of public procurement increased due to substantial volume of amount involved hence the taxpayers and other stakeholders’ (business, media, civil society, donors & international organizations) demanded monitoring and accountability in this area of governance. At the same time, there was a growing realization to improve efficiency and economy in spending, bridge the credibility gap and meet international standards to fulfill the expectations of investors etc. Establishment of five PPRAs has thus helped the government to regulate its procurement and achieve its goals.
Research Methodology:
This research study is based on experience of working in SPPRA, review of material available on websites, Literature review, Consultations and Interviews with SPPRA staff & officers and with field officers & contractors. A questionnaire was also devised for selected respondents. The target respondents were those officers who have worked in PPRA for a considerable period of time. Questionnaire was circulated to 20 such officers from Sindh, Baluchistan, Federal PPRA, KP PPRA & Punjab PPRA. Fourteen responses were retrieved and tabulated to assist in research outcomes. In addition to above PPR Ordinance and Rules were compared with SPP Act & Rules and improvements are suggested for future.
Statement of Problem
The Government of Sindh established the Sindh Public Procurement Regulatory Authority to strengthen the foundations of a responsive, accountable system of governance. But the provisions of Act and Rules are not same and the practitioners have to keep in constant touch with these provisions for compliance. Many provisions such as Procurement Committee, Grievance Redressal mechanism, Black listing and Contract administration are required to be brought in line. If the Federal PPRA & Provincial name sake Authorities work in tandem; Rules/regulations on many left over areas like Contract Management, Auction, Monitoring & evaluation and Inspection can also be framed uniformly. Though separate legal frame works can operate but in case of Food Authorities of Provinces as well as medicines and Education standards in HEC Federal as well as Provincial Governments are working in close coordination for harmonization of legal framework.
Scope of Study:
Public Procurement Regulatory Authority ordinance 2002 enforced by Federal Government and the Sindh Public Procurement Act 2009 followed by Rules & Regulations/guidelines have been practiced by Public Servants, Government departments and Contractors/ Consultants. While following these set of rules there is a need for improvement as well as harmonization so that certain hindrances and difficulties could be removed. These Rules and regulations are dynamic & progressive in nature hence can be improved & harmonized keeping in view the best practices.
Hypothesis
Provincial Public Procurement Laws are in harmony with Federal Public Procurement Laws or otherwise.
SECTION – I
Brief Summary
1.1 Situation Analysis;
A National Procurement Strategy (NPS) (2013-16) was firmed up & issued by Federal PPRA and agreed by all provincial PPRAs of Pakistan. Its first goal was to develop a frame work for public procurement to achieve harmonization of procurement laws, rules and procedures including nomenclatures. In order to achieve this goal NPS proposes harmonization of legal frame work for procurement .
Practically PPRAs are not autonomous enough to control the decision making process of the Authorities. Government can give policy directions to the Authorities & finally amend rules & regulations. There are many areas where detailed procedures/ Regulations are still required; such as Auctions, Regrouping & splitting, Blacklisting of Contractors, procedures of forfeiture of bid security, post qualification, Pre-qualification, rate contract, variations & amendments in contracts Inspection, M&E, Contract management and Contract Administration.
1.2 Definition of Public Procurement:
‘Public Procurement means acquisition of goods, services or construction of any works financed wholly or partly out of the public fund, including projects of public private partnership, unless excluded otherwise by government’ – SPP Act 2009
Public Procurement can be divided into three broad categories:
(a) Goods
(b) Works; and
(c) Services (including consulting services)
The selection of the method of Procurement shall depend upon the nature of assignment, type and volume of Procurement. It will be determined in case of Services prior to issuance of Request for Proposal. Procurement of Goods & works are made through open competitive bidding whereas in case of Procurement of Services various methods can be employed.
1.3 Procurement Cycle:
The procurement cycle follows various steps from identifying a definite requirement or need of the organization to the final step of award of the contract.
In the above picture, planning, documentation, Pre-qualification, Bid Evaluation, GRM, Contract Award and Management are the steps in a typical Procurement cycle. Following diagram shows a 9 steps process of Procurement taken from World Bank site. The process starts with need assessment, provision of Budget, selection of method of Procurement, management of Bidding process and execution of contract.
.1.4 Principles of Public Procurement:
The principles are the foundation of public procurement and are addressed through rules 4 of the SPPR 2010. They govern the management of public procurement and also set a code of conduct for public procurement practitioners and other officials directly or indirectly associated with the procurement process. Fairness, Transparency, value for Money, efficiency and Economy are the principles of public procurement.
The principles of public procurement are of great importance to note. These principles are economy, efficiency, fairness/competition and transparency. As per worlds’ financial institutions, economy is due to purchasing activity through which the ultimate purpose of value for money is obtained. The value for money will include more than just price in case of typical procurements. Efficiency clarifies that the procurement process is swift, simple, easy, and fetching required end results without any substantial time lag.
When the procurement process is impartial, consistent and reliable the process of Competition is provided. The process must provide a level playing field to the stakeholders and to compete with firmness and resolve. Transparency is followed when best procurement processes are enforced and practiced. The rules and procedures are maintained that are visible and unambiguous. It should not only be fair but should be seen as fair. Under scrutiny the good procurement holds its enforcers responsible for enforcing and following the rules.
Principles of Procurement under SPPR & PPR:
1.5 Stake Holders in Public Procurement:
i. Procurement Specialists are responsible for carrying out procurement activities for a particular department.
ii. Procurement Committee is a group of officers involved in drafting documents and evaluating procurement activities.
iii. Vendors / Bidders / Suppliers / Consultant / Contractors are the individuals/firms who bid/quote for procurements.
iv. Finance Managers prepare budgets & process the cases for payments to vendors/suppliers.
v. Accounts & Audit departments scrutinize these Procurements in terms of Pre- Audit & Post Audit.
vi. General Public which is directly affected from public procurement can review the processes on website as per disclosure requirements.
vii. NGOs related to public welfare may also scrutinize these procurements.
viii. Respective PPRAs to regulate the Public Procurement.
Monitoring & Evaluation:
The processes which show the efforts which Procurement specialist must follow in the application of rules & guidelines on salient features of an efficient public procurement regime. According to internationally acclaimed principles, the indicators of this system will include the following:
1. A regulatory authority with a mandate to regulate and monitor the activities of public procurement; and
2. Legal framework depicting the mechanism and the process for acquisition of goods, works and services by the public sector enterprises;
3. Establishment of a grievance Redressal mechanism meant for resolving & settlement of complaints on the pre-contract management issues;
4. A mechanism for wide dissemination of government policy decisions on procurement opportunities and results of evaluation exercises for award of contracts;
5. Regulatory arrangements for ensuring access to information on the public procurement system.
It has been generally observed that throughout the government there is an acute shortage of public procurement and contract administration specialists (from the development of policy to the management functions). Lack of capacity in procuring agencies, regulatory authorities, and accountability institutions have affected the efficiency and accountability of the procurement system.
The Public Procurement Rules provide broad guidelines for procuring agencies on various steps involved in a procurement cycle. The underlying objective of PPR is to help procuring agencies achieve value for money through ensuring transparency and accountability. The achievement of this objective is further strengthened by a issuing a clear cut guideline on mis-procurement. PPRA Ordinance 2002 defines mis-procurement as ‘public procurement as being in contravention of any provision of rules, regulations, orders or instructions made there under or any other law in respect of, or relating to, public procurement’. Rule 50 of PPR 2004 states that any unauthorized breach of these rules shall amount to mis-procurement.
1.7 Road Map of Reforms:
Sindh government, in 2006, adopted the Federal Public Procurement Authority Ordinance, 2002 and Federal Public Procurement Rules 2004.Work on the public procurement rules continued and Sindh assembly passed the Sindh Public Procurement Act 2009. Members from civil society and private sector have been included in SPPRA board. SPPR 2010 are much more detailed than the Federal Public Procurement Rules, 2004.
SPPR 2010 are more detailed than the Federal Public Procurement Rules, 2004. For example, unlike federal rules, SPPR give details of international and national competitive bidding procedures (Rule 15 of SPPR), grievance/dispute resolution mechanism (Rules 31-35) etc. Moreover, last two parts of the SPPR give provisions and procedures relating to procuring of consultancy services (Rules 58-80) and public private partnership projects (Rules 81-88). These details not only help in increasing transparency by giving more information to the public but also increase accountability by reducing discretion available to the procuring agencies.
The government of Punjab simply adopted the federal public procurement rules, 2004 and named them Punjab Public Procurement Regulatory Authority Act 2009. The Rules 52 to rule 59 have increased the transparency and accountability in relation to public private partnership projects (major mode of financing).
An Advisory Group has been formed by heads of all PPRAs which aims to :
i. Harmonize the procurement rules
ii. Use single set of Standard Bidding Documents across the county
iii. Use unitary e-procurement system
1.8 Procurement Planning:
Rule 8 of the PPR 2004 provides for preparation of a Plan based on need assessment. From 01-7-2014 PPRA has made it mandatory to host it on website. Rule 11 of the SPPR 2010 is more elaborate & it provides for an Annual Procurement Plan. All proposed Procurements are determined in that Plan with methods of Procurement and its timing. This plan is a dynamic document and can be amended keeping in view the budgetary provisions of the department. This is done on the basis of accurate need assessment.
1.9 Procurement Committee:
PPR 2010 does not contain the provision of Procurement Committee. SPPR provides for a PC with odd number of persons a members headed by an officer of BPS -18 and 1/3 of the members need to be from outside the department. Same is the case with BPPR these simply contain identical provision of SPPR. KPPR has a totally inward committee with no outside member. It has the most important functions as under:
1. Preparation of Bid documents;
2. Technical & Financial evaluation of Bids;
3. Preparation of Bid evaluation report;
4. Recommendation for award of contract;
1.10 Record Keeping
There are established norms for the safe custody of records and documents related to transactions and contract management. The Public Procurement regulation of 2008 establishes a list of the procurement records that must be kept at the operational level. However, the conditions for getting access to the record, availability of records are not there when it comes to producing it for public inspection. Regulations are required to be framed as per rule 9(2) of the SPPR 2010. Rule 9 provide for maintaining the record for a period of 5 years.
SECTION – II
STATUS OF RULES
2.1 Transparency through Publication:
The international best practices provide for timely and wide publication of bidding opportunities. The Information on the invitation to bid (Notice Inviting Tender in case of Sindh) are made available in the designated office of the agency. Procurement opportunities should be publicized in the local language Newspaper as well where small contractors and community organizations may also submit their bid. The Rule uses the word “widely circulated leading” dailies of English, Urdu & Sindhi languages. But the meaning of this phrase has not been clarified anywhere.
International bids should be published in widely circulated trade journal or a newspaper, and through the Internet. PPRA Rules on advertising and wide dissemination of procurement opportunities to the potential bidders and public are clear. PPRA website is used for posting of all such bids and is mandatory on all procuring agencies to post advertisement on PPRA website. Publishing of same advertisement in the newspapers is also mandatory when the value of procurement exceeds Rs.2 (million). In case of Sindh this value is Rs. 1 million. PPRA has been conducting desk monitoring of advertisements published in the newspaper for identification of violations which are conveyed to the concerned departments.
2.2 Open Competitive Bidding:
According to Transparency International the complexity of the process depends on the value and nature of the goods, works or services being procured, but the requirements for competitive bidding are similar in all cases and largely applicable to other forms of procurement as well. PPR prescribe open competitive bidding as a default method.
Bidding documents:
The bidding documents furnish all information necessary for a prospective bidder to prepare a bid for submission to the procuring agency. Bidding documents generally include invitation to bid, instructions to bidders, form of bid, general and special conditions of contract, specifications and drawings where necessary, relevant technical data, list of goods and bill of quantities etc. The instructions to bidder’s section of bidding documents contains all critical information on how to prepare a bid, submission of bid, opening and evaluation of bid and finally recommendation for award of contract.
In this regard, Pakistan Engineering Council had also prepared standard bidding documents (SBDs) and General Conditions of Contract for all engineering contracts. As per Rule 21(A) of the Sindh PPR 2010, these SBDs are also required to be hoisted on website of SPPRA as well as of the department.
2.3 Bid opening and evaluation:
In SPPR 2010, a clear & unambiguous evaluation criterion is required to be given in bidding documents and its absence may render it as Mis-procurement. In order to attain transparency and fairness the bids are opened at a designated time and place in the presence of all bidders or their representatives. This public bid opening will reduce the risk of its leakage to competitors, or any loss, or change. After the bids are opened, no information on the bid evaluation and award recommendations should be disclosed until after the successful bidder is notified of the award.
The Procuring agencies under PPR 35 are required to announce the results of bid evaluation in the form of a report giving justifications for acceptance or rejection of bids at least 10 days prior to the award of contract (Under rule 45 of the SPPR 2010 it is atleast 03 days prior to the award of Contract).
Procuring agencies under rule 45 are required to announce the results of bid evaluation in the form of a report giving justifications for acceptance or rejection of bids at least 3 working days prior to the award of procurement contract. It is important for the results of the bidding process as a whole to be evaluated for public scrutiny. Transparency International Pakistan is the main non-governmental organization, dedicated to accountability and curbing the corruption. It works for making transparency and accountability as more relevant public norms.
2.4 Award of contract:
The department shall award the contract within the period of bid validity to the bidder whose bid has been determined to be substantially responsive to the bidding documents and who has offered the lowest evaluated cost. The bidder should not be required to undertake responsibilities which are not provided in the bidding document or to otherwise modify the bid.
Rule 47 of The PPR 2004 lays down guidelines on public access and transparency in this manner, ‘As soon as a contract has been awarded the procuring agency shall make all documents related to the evaluation of the bid and award of contract public: —–‘. Rule 49 of Sindh PPR 2010 states about the award of Contract and Rule 50 about its publication on SPPRA’s website & that of own departments website.
2.5 Grievances/complaints:
As per international practice forums are available for Grievance Redressal Mechanism (GRM) and complaints from bidders and for furnishing clarifications. Rule 48 of the PPR 2004 stipulates that a procuring agency shall constitute a committee comprising of odd number of persons with proper authorization to decide the complaint within fifteen days. The aggrieved bidder may file an appeal in the court of law if not satisfied with the decision of the committee.
The above GRM is for the pre-contract period but for settlement of disputes arising after the award of contract arbitration under Arbitration Act 1940 is resorted. But there is no clear policy guideline is given.
The appeal and grievance mechanism has been given in the Punjab public procurement rules. In Sindh the GRM is based on two tier system. Rule 31 & 32 provided the detailed procedure regarding the composition & functioning of following committees:
i. Complaint Redressal Committee
ii. Review Committee
2.6 Blacklisting:
Rule 35 of SPPR 2010, provides that any contractor/ supplier or a consultant may be processed for Black listing on the basis of regulations to be issued by the Authority. The aggrieved party may file review before Review committee.
Rule 19 of PPR 2004 gives information about blacklisting of contractors and suppliers if they indulge in such practices or do consistent unsatisfactory work. The only difference is attachment of draft ‘Integrity Pact’ to the rules which binds contractors to not to indulge in corruption, fraud, non-disclosure of full information etc.
2.7 Effective Control Systems:
Auditor General of Pakistan and Accountant Generals in all the Provinces are responsible for Pre & post audit of public Procurement related government transactions and rules for internal control of the government expenditure also exists in the provincial departments. If Finance department, Administrative Department, Accountant General and SPPRA work in close harmony many issues related to malpractices could be resolved.
2.8 Degree of access to information/transparency:
AT the time of submission of Notice Inviting Tenders for hoisting following papers are obtained and placed on website:
a) Notice Inviting Tender
b) Notification of Procurement Committee
c) Notification of Complaint Redressal Committee
d) Bid Documents
e) Annual Procurement Plan
At the time of submission of Bid Evaluation Report in requirement of Rule 45:
a) Bid Evaluation Report on format duly signed
b) Comparative statement
c) Bidder’s Qualification Report
At the time of Contract Evaluation Report to comply Rule 50 of SPPR 2010:
a) Contract Evaluation Form
b) Letter of Award
c) Bill of Quantity
d) Integrity Pact (If required)
e) Form of Contract
Under SPPR 2010, all the above documents would be placed on website for the sake of transparency.
2.9 Accountability:
Once subjected to Audit, these are subject to post audit and public sanction for non-observance of rules or twisting those rules. Accountability is another key factor and a key deterrent to collusive and corrupt practices and a key prerequisite for procurement is its accuracy and credibility. The general laws/rules deal with all kinds of financial impropriety and government servants can be held accountable according to Punjab/Sindh Office of Ombudsman Act, Efficiency & Discipline Rules, NAB Ordinance, Punjab/Sindh Anti-Corruption Establishment Ordinance etc. The specific provisions are given in the Punjab procurement rules and they are similar to the federal public procurement rules. The Corrupt and fraudulent practices have been defined in Rule 2(q) of the SPPR 2010.
Legislative accountability is also weak as public accounts committee of the provincial assembly scrutinize public accounts after long delay hence the very essence of Accountability is defeated. But the Procurement related issues have come under the scrutiny of Anti-Corruption bodies with success.
1.10 Variation and Repeat Orders.
As per SPPR, the Procuring Agency will issue a Variation Order for procurement of works on services from the same contractor to cover any increase or decrease in quantities, including the introduction of new work items which are due to change of plans, design or alignment as per actual field requirements. These may be within the scope of the project and boundaries of the contract.
The Contractor shall not perform a variation until the Procuring Agency has authorized the variation in writing subject to the limit not exceeding the contract cost by of 15% on the same conditions in all respects on which he agreed to do them in the work, and at the same rates are specified in the tender for the main work. The contractor has no right to claim for compensation by reason of alterations or curtailment of the work.
Suppose the nature of the work in the variation does not correspond with items in the Bill of Quantities, the quotation by the contractor is to be in the form of new rates for the relevant items of work, and if the Engineer-in-charge is satisfied that the rate quoted is within the rate worked out by him on detailed rate analysis, and then only he shall allow him that rate after approval from superior authority.
If the quantity of work executed result the Initial Contract Price to be exceeded by more than 15%, and then we can adjust the rates for those quantities causing excess the cost of contract beyond 15% after proper approval. Any variation which is beyond 15% of initial contract amount shall be subject of another contract to be tendered.
SECTION – III
Analysis
3.1 Analysis of Responses:
The Regulatory Frame work/ Laws/ Rules (Annexure-A), Procurement Planning, Advertisement/ Publicity, Pre- qualification, Qualification & dis-qualification, open bidding/restrictive bidding, bid opening & evaluation, Procurement Committees, Award of Contract, Publication of Papers/ disclosure requirements, Complaint Redressal Mechanism, Audit Mechanism and Accountability measures provided under Provincial as well as Federal Rules have been examined to observe variations. The responses from expert’s/ Procurement specialists have been considered & recorded.
For examining the question of harmonization a Questionnaire (Annexure-B) was prepared & circulated amongst relevant officers with working experience in Public Procurement regimes. This Questionnaire was circulated by email to around 20 officers from which around 18 responses were received. The main arguments against harmonization are given as under:
Harmonization of procurement rules is not required because;
a) The mother law is the same;
b) There are minor differences in procedures, which are not significant;
c) Procurement is a provincial subject;
d) Rules follow same principles, but differ in their procedures.
e) The amendments to harmonize the rules could fire back
Harmonization of procurement laws at national level is beneficial for national development goals due to following reasons:
1. It facilitates capacity building of departments and their officials;
2. A uniform law would be easier for procurement officials to develop their expertise in the framework (laws, rules, regulations and bidding documents);
3. In federal level, APUG service occupies most of the key positions at local, provincial and federal level. Harmonized framework will be easier and more effective for them.
4. Harmonized rules will convince the aid agencies to follow national procurement laws.
5. A harmonized procurement framework is easier to monitor by the regulatory agencies, oversight bodies and accountability organizations.
6. Benchmarking is easier and credible if various governments in the country follow same rules;
7. Quick evolution of laws, rules and guidelines in all the PPRAs’.
8. It will give a positive signal to the private sector participants, reduce barriers to participation, increase competition and help create synergies.
9. It improves process performance, lower the costs for process maintenance, and give senior management more control over the operations
10. Harmonization will help to facilitate all the stakeholders in better understanding the public procurement legal framework all over the country.
11. Research & development preferably be done at federal level to avoid cost duplication
To achieve harmonization between the Federal and Provincial Public Procurement Rules focus on the following aspects may be required:
1. Drafting and inclusion of sector specific procurement guidelines;
2. Increasing the level of transparency in all the Public Procurement regulations;
3. Elaborating and Strengthening the Conflict of Interest provisions in the PP regulations;
4. Providing financial autonomy to PPRAs at Federal and Provincial levels;
5. Drafting generic Standard Bidding Documents for Procurement of Goods, Works and Consulting Services and associated regulations to be used by the departments belonging to Federal and provincial Governments.
6. Harmonization of detailed procedures to avoid any major differences and bidders of the one province of the country can take part in other provinces of the country to ensure NCB.
The following areas may also be harmonized:
(i) Eligibility of bidders
(ii) Mandatory disclosure of information / hosting of documents like bidding documents, evaluation reports and award documents on PPRAs websites.
(iii) Financial limits for national competitive bidding and international competitive bidding, and other alternative methods (Petty Purchases and Quotations).
(iv) Some PPRAs have two tier GRM and some have one tier. There should be a two tier grievance Redressal mechanism.
Advertisement notice in Federal Public Procurement Rules is still referred as ‘invitation to bid’ as compared to ‘notice inviting tender’ under Sindh Public Procurement Rules. Definitions of key words under federal and provincial (Sindh) procurement framework are different. The definition of word response time is given in PPR 2004 as under:
“The response time shall be calculated from the date of first publication of the advertisement in newspaper or hosting on the PPRA’s website”. In case if the advertisement is mandatory in both print and PPRA website in terms of Rule 12 of Public Procurement Rules, 2004 the response time shall be calculated from the day of first publication in the newspaper.
Whereas under SPPR 2010, the response time is the period starting from the first date of issuance of bidding documents up to last date of issuance of bidding documents. Procurement with estimated cost up to two million can be done by publishing tender notice on website only (PPR); whereas in SPPR this procedure is allowed for estimated cost up to one million.
Procurement steps at federal level (PPRA) have been well defined as compared to provincial level (SPPRA). It is easy to replicate standard practices when successfully adopted and implemented at national level but unfortunately this has not been done. PPRA has developed standard bid documents for goods, non-consulting services, and expression of interest etc. but procuring entities in Sindh are still using draft version of these (procurement of goods) documents.
Attainment of the value for money needs to be defined so that it could uniformly be understood and followed across the provinces. Economy, fairness, transparency, accountability and efficiency may also be defined so that these could uniformly be understood and tested across the provinces. Few other areas like PPP projects may be considered as Public procurement and be inserted in the rules where they are not, direct contracting from Govt. organizations may be deleted from KPPRA, Procurement committees and Redressal mechanism need to be harmonized in rules or regulations both are acceptable and having equal importance, Contract administration which includes watching deliveries/ deliverable inspection and payments, imposition of liquidated damages and blacklisting/debarring etc.