The Jamaica Chamber of Commerce 2016

Procurement Seminar THE CARICOM MARKET

Planning for the Regional Public Procurement

Market: The Legal Perspective

Prepared by:

Melanie Ffrench

Senior Legal Officer, Drafting

CARICOM Secretariat

CSME Unit (Haggatt Hall, Barbados)

E-mail: Melanie.Ffrench@caricom.org

Laws Governing the CARICOM

Public Procurement Regime

Administration and enforcement of the CARICOM Public

Procurement Regime will be based on 2 main sets of legal

instruments.

Protocol on Public Procurement for the Caribbean

Community

Harmonized national legislation giving effect to the

Protocol and the regional policy on public procurement

(based on CARICOM model – Public Procurement

(Caribbean Community) Act)

Key Issues Relevant to Suppliers

Who's to Plan for CARICOM Public

Procurement Regime

Procuring Entities (Purchasers) & Staff

1. Central, sub-central government and local

government entities;

2. Statutory bodies and

state-owned companies;

3. Any other undertaking that uses

public funds to procure goods,

services or works for public use & not

for commercial gain.

CARICOM Suppliers

o Who is a CARICOM supplier?

Judiciary

Scope of Regime: Aspects of Member

State Markets Outside of CARICOM

Regime (Protected National Space)

o All government purchasing, rentals, leases, concessions,

hire purchasing (with or without option to buy) of goods,

services or works in the CARICOM region will be open for

CARICOM supplier participation except –

1. If the purchasing etc. is done for commercial resale or in the

production of goods or services by commercial entities for commercial use.

Scope of Regime: Protected

National Space

2. Thresholds

Public procurement contracts where each

contract is valued below –

Goods – USD $150,000.00

Services – USD $150,000.00

Works – USD $3,000,000.00

Scope of Regime: Protected National

Space 2. Public procurement contracts that are contracts based on –

(a) agreements between a CARICOM Member State and

international organization that limit participation in procurement

opportunities due to permissible conditions and limitations stated in

the agreement;

(b) agreements between a Member State and a country that is

not a Member of CARICOM for the joint implementation or

exploitation of a project and financed by the non - CARICOM

country which limit participation in a procurement opportunity

because of specific permissible conditions and restrictions on

nationality or other eligibility of suppliers;

Scope of Regime: Protected National

Space

3. Contracts for goods or services to provide works of art, cultural

performances and products associated with creative expression for

cultural performances;

4. Contracts relating to staging of productions in support of or associated

with creative expression and cultural events including contracts for goods, services or works for the management of artistic works and

events or for venue rental;

5. Contracts for goods, services or works of a sensitive nature for use in or acquisition for the purposes of national defense and security;

Scope of Regime: Protected National

Space

6. Contracts to provide medical services;

7. Contracts to provide legal advisory and representation

services;

8. Contracts for works under public-private partnerships

between the Government of a Member State and at least

one supplier;

9. Contracts for liquidation and management services for

regulated financial institutions;

Scope of Regime: Protected National

Space

10. Contracts for services related to the sale redemption

and distribution of public debt, including loans and

government bonds, notes and other securities;

11. Contracts for services for research and development

of a sensitive and confidential information;

12. Contracts for procurement of utility services i.e. Electricity, telecommunications and piped water.

Objectives of CARICOM Public

Procurement Regime

The CARICOM public procurement regime has 4 main objectives –

1. Satisfying the needs of the public sector while obtaining value for

money for taxpayers.

2. Opening up public spending to CARICOM suppliers on an equal,

transparent and fair basis to stimulate economic growth across the

region and create new job opportunities.

3. Protecting the rights of participating bidders in an effective and

efficient way.

4. Preventing corruption and collusion.

FAIRNESS, ABILITY TO APPEAL

Model Bill places responsibility on procuring entities to treat

CARICOM suppliers who are nationals of another Member State

(and their goods, services and works) equally and no less

favorably than the covered entity treats suppliers who are

nationals of or registered in the Member State offering the

procurement opportunity and to treat the supplier without

discrimination.

If a supplier believes that he has suffered loss or injury due to an

alleged action or decision of a procuring entity in procurement

proceedings in which supplier has or had a legal interest and

alleges that the action or decision does not comply with the

provisions of the Act the supplier can challenge the action or

decision. (More later)

FAIRNESS

Procuring entity not to design a procurement opportunity with

intention to exclude procurement from scope of this Act or

artificially narrowing competition.

Technically, financially and legally qualified CARICOM

suppliers who are interested in participating in a procurement

opportunity are not to be prevented from participating due to

discriminatory restrictions or barriers to entry.

To the extent that there is a conflict between this Act and any

enactment which restricts or has the effect of restricting

categories of suppliers eligible to qualify to submit bids or to be

awarded contracts to suppliers who are nationals of or

registered in [name of Member State] this Act prevails.

TRANSPARENCY

Community Public Procurement Notice Board –

• This will be an electronic notice board set up before Protocol

enters into force.

• The protocol places a duty on CARICOM Member States to use

the Notice Board to publish their annual procurement plans;

procurement opportunities; notices of contract award;

Community standard bidding documents and amendments and

modifications.

• Notice Board will also contain the register of CARICOM suppliers

which is a list of CARICOM suppliers from which CARICOM

Member State governments can choose when engaging in

procurement. (More later)

TRANSPARENCY, CLARITY,

STRAIGHTFORWARD PROCESS

Standard Bidding Documents

Act places a legal duty on procuring entities to use the

prescribed Community Standard Bidding Documents for

procurements falling within the regime. But Act empowers the

Minister to submit a request to the Permanent Joint Council*

for modification or amendment to those documents.

Documents will be harmonized across Member States and

because they will form the basis of the bidding documents in

each country – process should become clearer to suppliers

from different Member States across CARICOM.

TRANSPARENCY, FAIRNESS, CLARITY

Technical specifications

Qualification requirements

TRANSPARENCY, FAIRNESS,

STRAIGHTFORWARD PROCESS

Procurement Methods

CARICOM regime allows 3 methods of procurement –

• Open bidding (default procurement method)

• Restricted bidding

• Single-source procurement

* Act requires that even if a procuring entity uses a method other than open

bidding must seek to maximize competition, selection of supplier must be fair

and non-discriminatory and include in record of procurement proceedings*

justification for which and circumstances in which the entity used the chosen

method.

TRANSPARENCY, CLARITY,

STRAIGHTFORWARD PROCESS, FAIRNESS

Receiving Bids & Bid Evaluation

• The Procurement Standard Operating Procedures are a set of

guidelines which provide harmonized Community rules on the manner in which bids are to be received, opened and evaluated.

• Guidelines were developed to ensure not only a harmonized and

standardized approach to bid evaluation and selection of a

successful bid but also to create a framework of transparency and

fairness with diminished scope for collusion or acts of corruption.

TRANSPARENCY, FAIRNESS, CLARITY,

STRAIGHTFORWARD PROCESS

Standstill period - period of 5 working days beginning on the day following

the day of dispatch of the contract award notice. In this time no contract

can be signed with successful bidder and unsuccessful suppliers can

challenge.

Contract Award Notice – after successful bidder selected, procuring entity

issues contract award notice to all suppliers who submitted bids and publish

on Community Notice Board. Identifies successful bid (but not award of

contract to a particular supplier). Indicates beginning of standstill period.

Statement of reasons unsuccessful bid – unsuccessful bidder who gets contract award notice can during standstill period submit request for

reasons his bid is unsuccessful & may challenge the decision.

TRANSPARENCY, FAIRNESS,

STRAIGHTFORWARD PROCESS Cancellation of Procurement Opportunity

• At any time prior to a contract being awarded a procuring entity can, for

justifiable reasons, cancel a procurement opportunity and reject all bids

without incurring liability. BUT

• Promptly publish notice of cancellation on Community Notice Board

• Promptly notify suppliers who submitted bids and, if asked, provide a

statement of reasons for cancellation

• Return any bids that remain unopened at the time the decision to cancel

was made

• In record of procurement proceedings include reasons for the decision to

cancel.

TRANSPARENCY, FAIRNESS, ABILITY TO

APPEAL Record of Procurement Proceedings

• Act will require that for every procurement opportunity a record of procurement proceedings must be kept for no less than 5 years.

• It should contain, at least –

1. Brief description of subject matter of procurement;

2. Names & addresses of suppliers who submitted bids;

3. Name and addresses and qualifications of supplier who submitted successful bid & contract price;

4. Summary of evaluation & comparison of bids;

5. Performance of successful supplier during course of contract.

ABILITY TO APPEAL, FAIRNESS

Supplier Challenge an Review

Supplier Challenge can take 3 forms-

1. An application to the procuring entity to reconsider its action

or decision which the supplier alleges caused him to suffer loss

and did not comply the Procurement Act ;or

2. An application to an independent review body (established by

the Act) to order the procuring entity to cease taking the

decision or action in contravention of the Act, to proceed in

compliance with the Act, to order the decision of the

procuring entity be revised or overturned (except a decision

bringing a procurement contract into force) or payment of

compensation.

ABILITY TO APPEAL, FAIRNESS

Supplier Challenge an Review

3. Application to a court of competent jurisdiction.

NEW JOB OPPORTUNITIES

Suppliers Register

• Regional register of CARICOM supplier which is populated using the

relevant information from Member States' national supplier registers.

• CARICOM register will consist of CARICOM suppliers who have satisfied

their national prescribed minimum requirements to be considered

capable of performing public procurement contracts to supply goods,

services or works.

• The Register serves the purpose of CARICOM directory of suppliers and

is not an indicator that a supplier listed on the Register is suitable to

perform any particular contract.

• An avenue for suppliers to contact each other for joint bidding.

LIABILITY, TRANSPARENCY, FAIRNESS

Categories of Persons Who May be Liable Under Act

1. Government officers and staff

2. Suppliers (both individuals and bodies corporate).

Liability can be civil or or criminal or both.

Examples of Types of Offences

Collusion, unlawfully influencing an officer, disclosure of

confidential information,tampering with records and documents.

THANK YOU.

THE END