Public Procurement Act 2006

Last updated – 28 November 2018

Amendments to Public Procurement Act 2006

AMENDMENT 2018

(Amended as per Government Gazette No. 100 of 3 November 2018)

First Schedule Part I

(Amended)

(Amended as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2018-ACT No. 11 of 2018

(Government Gazette No.71 of 9 August 2018)

Part I - Section 2 - Definition “public body” (Amended)

Section 3 - Subsection (1) (b) (Amended)

Subsection (1) (d) to (1) (g) (Repealed)

Subsection (1)(c) (Amended)

Subsection (1A) & (1B) (Repealed) and (Replaced)

Subsection (IBa) & (IC) (Repealed)

Section 3A - Section 3A (Added)

Part V - Section 27 - Subsection 27(1) (Amended)

Part VIII - Section 53 - Section 53 (Amended)

Schedule - Schedule to the Act (Amended) as First Schedule

Second Schedule (Added)

AMENDMENT 2017

(Amended as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2017-ACT No. 10 of 2017

(Government Gazette No.70 of 24 July 2017)

Part I - Section 2 - New definitions “control”, foreign state” and “own” (Added)

Section 3 - Subsection (1D) (Repealed)

Part V - Section 26B - Sections 26B (Added)

Section 35 - Subsection (1A) (Added)

Part VIII - Section 53 - Subsection (1) (Amended), paragraphs (e) and (f) (Amended), paragraphs (g)-(k) (Added) and subsection (2) (Amended)

AMENDMENT 2016

(Amended as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2016-ACT No. 18 of 2016

(Government Gazette No.79 of 7 September 2016)

Part 1 - Section 3 - Subsection (1) (e) (Amended)

- Subsection (1)(f) (Amended)

- Subsection (1)(g) (Added)

- Subsection (1A)(b) (Amended)

Part III - Section 11 - Subsection (1)(e)(ii) (Amended)

- Subsection (1)(f) (Added)

Part V

Section 27

Subsection (1A) (Added)

- Section 39 - Subsection (1)(c) (Amended)

- Subsection (1)(d) (Amended)

- Subsection (1)(e) (Added)

- Subsection (1)(f)(Added)

- Subsection 3 (Amended)

- Section 40 - Subsection (2C) (Added)

Part VI - Section 44 - Subsection (IB)(d) (Added)

Part VII - Section 46 - Subsection (4A) (Added)

AMENDMENTS 2015

(Amended as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2015 Act No. 9 of 2015

Government Gazette No. 82 of 2015 of 08 August 2015)

Part I	-	Section 2	-	New definitions “Chief Executive” and “chief executive officer” (Added)
	-	Section 3	-	Subsection (2A) (Added)
Part III	-	Section 8	-	Subsection 8(1) (Amended)
		Section 9	-	Subsection 9 (1A) (Added)
		Section 10	-	Subsection 10(1)(c) (Repealed) and (Replaced)
		Section 11	-	Subsection 11(1A) (a) and 11(1A)(b) (Added)
		Section 12	-	Subsection 12(1)(da) (Added)
Part IV		Section 15	-	Subsection 15 (1) (b) (iii) (Added)
		Section 21	-	Subsection 21(3)(d) (Amended)
Part V	-	Section 39	-	Subsection 39 (5) (Added)
		Section 40	-	Subsection 40 (1) (Amended)
			-	Subsection 40 (1A) (Added)
Part VI		Section 43	-	Subsection 43(1) (Amended)

Section 45 - Subsection 45(1) (Amended)

- Subsection 45(2)(ba) (Added)

- Subsection 45 (2A) and Subsection 45 (2B) (Added)

- Subsection 45(4) (Amended)

- Subsection 45(8) (Repealed) and(Replaced)

Schedule Part 1

(Amended)

AMENDMENTS 2014

(As per The Economic And Financial Measures (Miscellaneous Provisions) Act 2013 Act No. 27 of 2013 - GN. No. 111 of 14 December 2013)

	Part I	-		Section 2		-		“procurement” (Amended)
		-		Section 3		-		Subsection (1B) (a) (Repealed) and (Replaced)
						-		Subsection (1Ba) (Added)
	Part II	-		Section 7		-		Subsection 7(e) (Amended)
				Section 7B		-		Section 7B (Added)
	Part III	-		Section 8		-		Subsection 8(5) (Added)
			Section 8A		-		Section 8A (Added)
			Section 9		-		Section 9 (Repealed) and (Replaced)
			Section 9A		-		Section 9A (Added)
			Section 10		-		Subsection 10(1) (Repealed) and (Replaced)
						-	Subsection 10(2) (Amended)
Part V		-	Section 26A			-	Existing provision (numbered) (1)
						-	Subsection 26A (2) (Added)
			Section 37			-	Subsection 37 (10A) (Added)
Part VI			Section 44			-	Subsection 44(1)(a) and (b) (Repealed) and (Replaced)
						-	Subsection 44(1) (c) (Added)
						-	Subsection 44(1A) (Repealed) and (Replaced)
						-	Subsections 44(1B) and 44(1C) (Added)
						-	Subsection 44(4) (Amended)

Section 45 - Subsection 45(2) (b) (Repealed and Replaced)

- Subsection 45(ba) (Repealed)

- Subsection 45 (2A) and (2B) (Repealed)

- Subsection 45(3)(d) (Added)

- Subsection 45(4) (Repealed) and(Replaced)

- Subsection 45(7) (Amended)

(Amended as per G.N. No. 241 of 2013)

Part II - New item - Knowledge Parks Ltd

(As per The Economic And Financial Measures (Miscellaneous Provisions) Act 2012 Act No.27 of 2012- GN.No.129 of 22 December 2012)

Part I-	Section 2	-	“framework agreement” (Amended)
			New definition “lead organization” (Added)
-	Section 3	-	Subsection (1)(b) (Amended)

- Paragraphs (d), (e), (f) (Added)

			-	Subsection 1(A) (Repealed and Replaced)
Part II	-	Section 7	-	New Paragraph (aa) (added)
Part III	-	Section 9	-	Section 9 (Repealed and Replaced)
		Section 10		Section 10(2) (Amended)
Part IV	-	Section 24	-	Subsection (11) and (12) (Repealed and Replaced)
Part V	-	Section 26	-	New Section. 26(A) (Added)
		Section 28	-	Subsection (2) (Repealed and Replaced)
		Section 29	-	New Section 29A (Added)
		Section 40	-	New Subsection 2B (Added)
			-	Subsection 4 (Amended)
Part VI		Section 43	-	Subsection 1 (Amended)
		Section 44	-	Subsection 1(b) (Amended)
				Subsection (1A) (Added)
				Subsection (2) (Repealed and Replaced)
				Subsection (4) (Amended)
		Section 45	-	Subsection (1)(c) (Repealed and Replaced)
			-	Subsection (2) New Para. (ba) (Added)
			-	New Subsections (2A & 2B) (Added)
			-	Subsection (3) New para (c) (Added)
			-	Subsection (8) (Repealed and Replaced)

AMENDMENTS 2012

(As per The Open University of Mauritius Act 2010) (Act No. 2 of 2010) –State House

(Proclamation No. 31 of 2012)

Part II - Deleting “Mauritius College of the Air” and inserting “Open University of Mauritius”

(As per The Economic And Financial Measures (Miscellaneous Provisions) (No.2) ACT 2011 –G.N. No.111of 15 December 2011)

Part 1 - Section 2 - Interpretation of “framework agreement” added

- Interpretation of “procurement contract” redefined and (b) (added)

Section 3 - Application of Act -Sub section 1 repealed and replaced by Subsection 1, 1A, 1B, 1C, 1D

AMENDMENTS 2010

Part II - New item - Gambling Regulatory Authority

_________

AN ACT

To provide for the basic principles and procedures to be applied in, and regulate, the public procurement of goods, public works, consultant services, and other services and for the institutions responsible for those matters

ENACTED by the Parliament of Mauritius, as follows –

PART I - PRELIMINARY

1. Short title

This Act may be cited as the Public Procurement Act 2006.

2. Interpretation

Definition “public body” (amended) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2018 Act No. 11 of 2018- G.G No71 of 9 August 2018)

(Interpretation “control”, “foreign state” and “own” (Added) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2017 Act No. 10 of 2017- G.G No 70 of 24 July 2017)

(Interpretation “Chief Executive” and “chief executive officer” (Added) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2015 Act No. 9 of 2015 of G.G No 82 of 2015 of 08 August 2015)

(Interpretation “procurement” (Amended) as per G.N 111 of 14 December 2013)

(Interpretation “framework agreement”(Amended) and new definition “lead organization” (Added) as per The Economic And Financial Measures (Miscellaneous Provisions) Act 2012 Act No.27 of 2012- GN.No.129 of 22 December 2012)

(Interpretation “framework agreement”-(Added) and interpretation “procurement contract” – (Redefined) and (b) (added) as per The Economic And Financial Measures (Miscellaneous Provisions) (No.2) ACT 2011 – GN. No. 111 of 15 December 2011)

(“public body – (b)(iii) (amended) and (c) (repealed) as per The Finance Act 2009 –G.G. No. 69 of 2009)

In this Act -

"bid" includes a proposal submitted in response to a request issued pursuant to section 24;

"bidder" means a participant or potential participant in procurement proceedings;

"bidding document" –

(a) means any document issued by a public body on the basis of which bidders prepare bids; and

(b) includes any document which contains instructions to bidders, specification, maps, designs, terms of reference, work schedules, evaluation criteria, bills of quantities, conditions of contract or other similar items;

"bid security" means the security instrument required to ensure that a bid will remain valid during the period stated in the bidding document;

"Board" means the Central Procurement Board established by section 8;

"Chairperson" means the Chairperson of the Board or of the Review Panel, as the case may be;

"challenge" means a challenge made pursuant to sections 24, 40 or 43;

“Chief Executive” means the person referred to in section 9(1);

“chief executive officer” means the administrative head of a public body;

"consultant" means a person under contract to provide consultancy services to a public body in relation to a procurement contract;

"consultancy services" means services of an intellectual and advisory nature, not incidental to the supply of goods or to the execution of works, such as design, supervision, training, analysis, auditing, software development, and similar services;

"contractor" means a person who has entered into a procurement contract with a public body;

“control” has the same meaning as in the Public Debt Management Act;

"donor organisation" means an organisation based outside Mauritius which provides, or joins in providing, grants, credits or loans to the Government or its agencies;

"exempt organisation" means a body which is, by regulations, excluded from the application of this Act;

“foreign state” includes any Ministry, department of the Government, organ, statutory body, Government-owned or Government-controlled corporation, or other agency, of the foreign state;

“framework agreement” means an agreement or other arrangement between one or more public bodies or a lead organisation and one or more suppliers which establishes the terms and conditions under which the supplier will enter into one or more contracts with the public body in the period during which the agreement or arrangement applies;

"goods" means objects of every kind and description including commodities, raw materials, manufactured products and equipment, industrial plant, objects in solid, liquid or gaseous form, electricity, as well as services incidental to the supply of the goods such as freight and insurance;

“lead organisation” means a public body designated by the Policy Office to enter into and manage a framework agreement on its own behalf and that of other public bodies, or on behalf of other public bodies;

"local authority" –

(a) has the same meaning as in the Local Government Act; and

(b) includes the Rodrigues Regional Assembly;

"major contract" means a contract for the procurement of goods or services or the execution of works –

(a) to which a public body is or proposes to be a party; and

(b) the estimate of the fair and reasonable value of which exceeds the prescribed amount;

"member" –

(a) means a member of the Policy Office, the Board or the Review Panel, as the case may be; and

(b) includes the Director, or the Chairperson of the relevant body, as the case may be; "Minister" means the Minister to whom &nbspresponsibility for the subject of finance is assigned;

"officer" means a person who is assigned to, or employed by, the Policy Office, the Board or the Review Panel;

"other services" means any services other than consultancy services or services incidental to the supply of goods or the execution of works;

“own” has the same meaning as in the Public Debt Management Act;

"Policy Office" means the Procurement Policy Office established under section 4;

"prescribed amount" means the amount specified in column 3 of the Schedule corresponding to the public body specified in column 1 in relation to the type of contract specified in column 2 of that Schedule.

"procurement" means the acquisition by a public body , by purchase, lease or any other contractual means, of goods, works, or consultancy or other services;

"procurement contract"

(a) means a contract between a public body and a supplier, contractor or consultant resulting from procurement proceedings; and

(b) includes a contract under a framework agreement;

"public body" -

(a) means any Ministry or Government department;;

(b) includes -

(i) a local authority;

(ii) a parastatal body; and

(iii) such other bodies specified in the Schedule;
"public official" means –

(a) an officer;

(b) a supplier, contractor or consultant or any of their agents; and

(c) a public officer or other person employed by a public body;

"responsive" in relation to a bid, means responsive to the basic requirements of a bid regarding ability to perform and complete on time;

"Review Panel" means the Independent Review Panel established under section 44;

"supplier" means a person delivering goods, works, consultancy services or other services;

"Vice Chairperson" means either of the two Vice-Chairpersons of the Board; and

"works" means any work associated with the construction, reconstruction, demolition, repair or renovation of a building, structure or works, such as site preparation, excavation, erection, building, installation of equipment or materials, decoration and finishing, as well as services incidental to construction such as drilling, mapping, satellite photography, seismic investigations and similar services.

3. Application of Act

Subsection (1)(b) (Amended), subsections (1)(d) to (1)(g) (Repealed), subsection (1)(c) (Amended) , Subsections (1A) and (1B) (Repealed) and (Replaced) and Subsection (IBa) and (1C) (Repealed) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2018 Act No. 11 of 2018- G.G No71 of 9 August 2018)

(Subsection (1D) (Repealed) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2017 Act No. 10 of 2017- G.G No 70 of 24 July 2017)

Subsection 1(e) (Amended), 1(f) (Amended), 1(g) (Added) and (1A)(b) (Amended) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2016 Act No. 18 of 2016- GG No.79 of 7 September 2016)

(Subsection (2A) (Added) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2015 Act No. 9 of 2015-G.G No. 82 of 08 August 2015)

(Subsections (1B) (a) (Repealed) and (Replaced) and (1Ba) (Added) as per G.N 111of 14 December 2013)

(Subsection I(b) (Amended), paragraph (d) (e) (f)(Added), subsection 1(A) (Repealed) and (Replaced) as per The Economic And Financial Measures (Miscellaneous Provisions) Act 2012 Act No.27 of 2012 -GN.No.129 of 22 December 2012)

(subsection (1) repealed and replaced by subsection 1 , 1A, 1B, 1C, 1D as per The Economic And Financial Measures (Miscellaneous Provisions) (No.2) ACT 2011 – GN. No. 111 of 15 December 2011)

(1) Notwithstanding any other enactment but subject to this section, this Act shall not apply to procurement undertaken –

(a) to protect national security or defence, where –

(i) the Prime Minister so determines; and

(ii) the procurement is undertaken by the most competitive method of procurement available in the circumstances;

(b) pursuant to an agreement or arrangement between Mauritius and a foreign State which allows Mauritius to benefit from the expertise and development experience of that foreign State in a particular field, provided that such procurement is undertaken by or-

(i) the foreign State or by, or through, an entity designated by the foreign state;

(ii) the Government of Mauritius; or

(iii) a statutory body or entity-

(A) specified in an enactment; or

(B) designated for that purpose by the Government of Mauritius; or”

(i) such procurement is in respect of an information and communication technology project which requires interfacing with different existing systems; and

(ii) in view of confidentiality of sensitive information and potential risks in the execution of the project, the supervising officer of the Ministry considers that, in order to protect the safety or interests of Mauritius, it is necessary that the project be executed by an entity which has initially developed the system or which has previously developed a similar system.

(1A) For any procurement under subsection (1)(b) or (c) -

(a) the relevant Ministry shall-

(i) perform due diligence, with such assistance as it may request from the Board, to ensure that the procurement constitutes value for money;

(ii) submit a report on the due diligence, together with supporting documents and its recommendations, to the high-powered committee;

(b) the high-powered committee shall, after examining the documents and recommendations referred to in subparagraph (a)(ii)-

(i) forward its report, including its recommendations, to Cabinet; and

(ii) notify the relevant Ministry of its recommendations to enable it to take a decision on the procurement.

(1B) For the purpose of Subsection (1A) –

(a) the Policy Office shall issue guidelines to assist the Ministry in performing due diligence;

Circular 7 of 2016

(b) the high-powered committee –

(i) shall be chaired by the Secretary to Cabinet and Head of Civil Service, or his representative;

(ii) shall comprise such other senior officials as the Secretary to Cabinet and Head of Civil Service may designate;

(iii) may co-opt such public officer as it considers appropriate.

(2)This Act applies to any other procurement effected by a public body, other than an exempt organization.

(2A) Every exempt organisation shall establish its own procurement rules in relation to such types of contracts as may be prescribed.

Circular 2 of 2017

(3)Where any provision of this Act conflicts with the procurement rules of a donor organisation, the application of which is mandatory pursuant to an obligation entered into by Mauritius under any treaty or other form of agreement, those rules shall prevail.

(4)This Act shall bind the State.

3A. Non-application of Parts IV, V and VI

(New Section 3A (Added) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2018 Act No. 11 of 2018- G.G No71 of 9 August 2018)

(1) Parts IV, V and VI of this Act shall not apply to the procurement of goods, works and services specified in the Second Schedule.

(2) Any procurement of goods, works and services specified in the Second Schedule shall be undertaken on such conditions as may be prescribed.

PART II - PROCUREMENT POLICY OFFICE

4. Procurement Policy Office

(1) There shall be a Procurement Policy Office in the Ministry, which shall be administered by a Director and 2 other independent persons appointed by the President of the Republic, acting in accordance with the advice of the Prime Minister tendered after the Prime Minister has consulted the Leader of the Opposition on such terms and conditions as may be determined by the Prime Minister.

(2) The persons referred to in subsection (1) shall be appointed for a 3-year term and shall be eligible for re-appointment for one additional term.

(3) The President shall, on the advice of the Prime Minister, at any time terminate the appointment of a member who has been guilty of -

8A. Annual report of Board ( New section 8A (Added) as per G.N 111 of 14 December 2013)

(1) The Board shall, not later than 6 months after the close of every financial year, cause to be published a report on its activities in respect of the previous financial year.

(2) The Board shall forward a copy of every report referred to in subsection (1) to the Minister.

(3) The Minister shall, at the earliest available opportunity, lay a copy of the annual report before the National Assembly.

9. Chief Executive (Section 9 (Repealed) and (Replaced) as per G.N 111 of 14 December 2013)

and Subsection (1A)(Added) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2015 Act No. 9 of 2015- GN No.47 of 2015 of 08 August 2015)

(1) There shall be a Chief Executive who shall be a public officer and who shall be responsible for the execution of the policy of the Board and for the control and management of the day-to-day business of the Board.

(1A) In the discharge of his functions, the Chief Executive shall-

(a) before the review of the recommendations of a bid evaluation committee by the Board under 11(1)(e), certify that all procurement rules at the level of the Board have been complied with in accordance with this Act;

(b) act in accordance with such directives as he may receive from the Board; and

(2) The Chief Executive shall attend every meeting of the Board and may take part in its deliberations but shall not have the right to vote.

9A. Secretary of Board (New section 9A (Added) as per G.N 111of 14 December 2013)

(Section 9 (Repealed) and (Replaced) as per The Economic And Financial Measures (Miscellaneous Provisions) Act 2012 Act No.27 of 2012- GN.No.129 of 22 December 2012)

(1) There shall be a Secretary of the Board who shall be a public officer.

(2) The Secretary of the Board shall be under the administrative control of the Chief Executive

10. Staff of the Board

Section 10 (c) Repealed and Replaced as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2015 Act No. 9 of 2015 G.G No. 82 of 2015 of 08 August 2015)

(Subsection 10(1) (Repealed) and (Replaced) and Subsection 10(2) (Amended) as per G.N 111 of 14 December 2013)

(Section 10(2) (Amended) as per The Economic And Financial Measures (Miscellaneous Provisions) Act 2012 Act No.27 of 2012- GN.No.129 of 22 December 2012)

(1) The Chief Executive shall be assisted by-

(a) such public officers as may be necessary;

(b) such other public officers as may be designated by the Head of the Civil Service; and

(c) such other persons as may be appointed by the Board in accordance with section 12(1)(da), on such contract terms and conditions as the Board may determine.

(2) Every person referred to in subsection (1) shall be under the administrative control of the Chief Executive.

11. Functions of the Board

(Subsection (1)(e)(ii) (Amended) and (1)(f) (Added) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2016 Act No. 18 of 2016- GG No.79 of 7 September 2016)

11(1A)(Added) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2015 Act No. 9 of 2015 G.G No. 82 of 2015 of 08 August 2015)

(Subsection (1)(d)amended as per The Finance Act 2009 – G.G. No. 69 of 2009)

(1) The Board shall, in respect of major contracts -

(a) establish appropriate internal procedures for the operations of the Board and ensure compliance with them;

(b) vet bidding documents and notices submitted to it by public bodies;

(c) receive and publicly open bids;

(d) select persons from a list of qualified evaluators maintained by it to act as members of a bid evaluation committee and oversee the examination and evaluation of bids; and

(e) review the recommendations of a bid evaluation committee and –

(i) approve the award of the contract; or

(ii) require the evaluation committee to make a fresh or further evaluation on specified grounds; and-

(f) review the recommendations of a public body with respect to an amendment that increases the contract value pursuant to section 25(2)(c) or (d) or 46(3), or a variation pursuant to section 46(4) and –

(i) approve the variation or amendment proposed;

(ii) require the public body to make a fresh recommendation; or

(iii) reject the variation or amendment proposed.

(1A) (a) Where the Board requires the evaluation committee to make an evaluation pursuant to subsection (1)(e)(ii), the bid evaluation committee shall, within 5 working days, comply with the requirement of the Board.

(b) Where the bid evaluation committee fails to comply with a requirement under paragraph (a) or the Board is not satisfied with the fresh or further evaluation, the Board may appoint another bid Evaluation committee to make a fresh or further evaluation within such time as the Board may determine.

(2) The Board shall strive to achieve the highest standards of transparency and equity in the execution of its duties, taking into account -

(a) the evaluation criteria and methodology disclosed in the bidding documents;

(b) the qualification criteria and methodology disclosed in the bidding documents;

(c) equality of opportunity to all bidders;

(d) fairness of treatment to all parties;

(e) the need to obtain the best value for money in terms of price, quality and delivery, having regard to set specifications; and

(f) transparency of process and decisions.

(3) The Board shall have such powers, and exercise such functions, as may be assigned to it under any other enactment.

*11A. Award of public-private partnership project

Notwithstanding the provisions of this Act, the Board –

(a) shall approve all documents relating to the bid;

(b) shall authorise, approve and carry out pre-selection exercises;

(c) shall authorise, the advertisement, invitation locally or internationally, as the case may be, and call for bids;

(d) shall examine and evaluate bids; and

(e) may approve the award,

of a public-private partnership project in the manner provided for under the Public-Private Partnership Act 2004.

* (New Section 11A added as per Finance Act July 2008)

12. Powers of the Board

Subsection (da) (Added) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2015 Act No. 9 of 2015 G.G No. 82 of 08 August 2015)

(1) In the discharge of its functions, the Board may -

(a) call for such information and documents as it may require from any public body;

(b) examine such records or other documents and take copies or extracts from them;

(c) commission any studies relevant to the determination of the award of major contracts;

(d) request any professional or technical assistance from any appropriate person in Mauritius or elsewhere;

(da) make appointments pursuant to section 10(1) (c) following call for applications by Public advertisement; and

(e) do all such acts and things as it may consider incidental or conducive to the exercise of its functions.

(2) Any person to whom a request is made under subsection 1(a) and who fails to comply with the request, or willfully gives any false or misleading answer to any question lawfully put by the Board, shall commit an offence.

(3) Where –

(a) any variation in a contract price subsequent to the conclusion of a procurement contract entered into by a public body causes the total contract amount to exceed the prescribed amount by more than 20 per cent; or

(b) the lowest bid submitted in response to an invitation made by a public body exceeds the prescribed amount,

the matter together with all the bidding documents and the contract documents, if any, shall be referred to the Board for approval.

(4) Where it comes to the knowledge of the Board that a contract has been awarded or is about to be awarded in breach of this Part, the Board shall forthwith report the matter to the Head of the Civil Service, with a copy to the Director, recommending such action as it may deem appropriate.

(5) The Head of the Civil Service may, where he considers appropriate, refer any matter reported to him under subsection (4) to the Police for enquiry.

13. Meetings of the Board

(1) The Board shall meet as often as is necessary and at such time and place as the Chairperson deems fit.

(2) Everything authorised or required to be done by the Board shall be decided by simple majority of the members present and voting.

(3) In the absence of the Chairperson at any meeting, the other members shall designate one of the 2 Vice-Chairpersons to preside over the meeting.

(4) At any meeting of the Board –

(a) except where the Board meets for the purpose of opening bids, no person other than a member or a person referred to in section 8(1) shall be present;

(b) the Chairperson or one of the 2 Vice-Chairpersons and 2 other members shall constitute a quorum; and

(c) each member shall have one vote on the matter in question and, in the event of an equality of votes, the person chairing the meeting shall have a casting vote.

(5) Where a member does not, for good cause, attend a meeting of the Board, the Secretary shall forthwith communicate to him the gist of every decision taken at the meeting, and he may, within 24 hours, request the Chairperson to reconvene the Board so as to reconsider the decision.

(6) Subject to this section, the Board shall conduct its proceedings in such manner as it thinks fit.

14. Procedure of the Board

(New subsection 6 added as per The Additional Stimulus Package (Miscellaneous Provisions) Act 2009 – G.N. No. 32 of 2009)

(1) The Chief Executive Officer of a public body shall inform the Board in writing of any major contract that the public body intends to enter into and shall submit all the relevant documents to the Board.

(2) The Board shall, within such time as may be prescribed after having been notified in accordance with subsection (1), authorise the public body to call for bids or utilise another appropriate procurement method.

(3) The Board shall approve the award of every major contract.

(4) No public body shall -

(a) advertise, invite, solicit or call for bids in respect of a major contract unless authorised by the Board; or

(b) award a major contract unless the award has been approved by the Board.

(5) No person shall sign a major contract with a public body unless the award has been approved by the Board.

(6) For the avoidance of any doubt, this section shall not apply where the award of the contract is made following an emergency procurement under section 21 or a direct procurement under section 25.

PART IV - PROCUREMENT METHODS

15. Choice of procurement method

Sub-paragraph 1(D) (Amended) and sub-paragraph 1(D)(ii) (Added) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2015 Act No. 9 of 08 August 2015)

(1) Subject to subsection (2), the choice of procurement methods available to a public body

shall be -

(a) for the procurement of goods, other services and works, by -

(i) open advertised bidding;

(ii) restricted bidding;

(iii) request for sealed quotations;

(iv) direct procurement;

(v) community or end-user participation; or

(vi) departmental execution; and

(b) for the procurement of consultancy services, by –

(i) request for proposals on the basis of –

(A) quality and cost;

(B) quality alone;

(D) least cost and acceptable quality; or

(ii) direct procurement; or

(iii) open advertised bidding

(2) (a) Except in the cases referred to in paragraph (d), procurement shall, in the case of goods, other services or works, be made by means of open advertised bidding, to which equal access shall be provided to all eligible and qualified bidders without discrimination.

(b) Open advertised bidding proceedings may include a prequalification stage, or post qualification procedures, before selection of the winning bidder

(c) Open advertised bidding proceedings shall be carried out in a single stage or in two stages in the cases referred to in section 29

(d) A method of procurement referred to in subsection (1) (a) (ii) to (vi) may be used only if the public body has reason to believe that open advertised bidding –

(i) will not be efficient or practical for the procurement in question; or

(ii) will be too costly to apply given the value of the procurement.

(e) Where a public body uses a method of procurement other than open advertised bidding or, in the case of the procurement of consultancy services, a method other than one specified in subsection (1)(b)(i), it shall note in the record of the procurement proceedings the ground for the choice of the procurement method.

16. Open advertised bidding method

Circular 9 of 2016;

(subsection (renumbered 1) and subsection 2 (added) as per The Finance Act 2009 –G.G. No. 69 of 2009)

(1) Where the open advertised bidding method is used, the invitation to bid, or the invitation to pre-qualify, shall be published in a national newspaper with wide circulation and, in the case of international bidding, in selected international media with wide circulation as well.

(2) A public body may, in appropriate cases and subject to any regulations to that effect, confer an advantage or preference to domestic or regional goods, services or contractors in the case of open advertised bidding proceedings.

17. Open national bidding

A public body may limit participation in open advertised bidding proceedings to citizens of Mauritius or entities incorporated in Mauritius only where such limitation is stated in the invitation to bid or, for prequalification, in the bidding documents and is otherwise in accordance with such criteria as may be prescribed. (Circular 9 of 2016)

18. Open international bidding

(subsection (2)(repealed) as per The Finance Act 2009 –G.G. No. 69 of 2009)

Open advertised international bidding shall be used where -

(a) the estimated value of the procurement exceeds the prescribed threshold;

(b) the goods, works or other services are not available under competitive price and other conditions from more than one supplier in Mauritius; or

(c) there is no response to open national bidding and the goods, other services or works must be obtained from international bidders.

19. Restricted bidding

(1) Restricted bidding may be used -

(a) where a public body has reason to believe that the goods, other services or works are only available from a limited number of bidders;

(b) where the time and cost of considering a large number of bids is disproportionate to the value of the procurement, having regard to such thresholds as may be prescribed; or

(c) by limiting the participation in a particular procurement to those suppliers included on pre- approved supplier eligibility lists drawn up and maintained by the public body, in such manner as may be prescribed, so as to ensure that suppliers of specialised goods and services have and maintain the necessary technical and financial capability to provide them.

(2) (a) Where restricted bidding is used on the ground referred to in subsection (1)(a), all known suppliers capable of supplying the goods, other services or works shall be directly solicited.

(b) Where restricted bidding is used on the ground referred to in subsection (1)(b), the public body shall, as far as reasonably possible, directly solicit bids from a minimum of 5 bidders.

20. Request for sealed quotations

Directive 5;

(1) The request for sealed quotations method shall only be used for the procurement of -

(a) readily available commercially standard goods not specially manufactured to the particular specifications of the public body;

(b) small works; or

(d)

(e) where the estimated value of the procurement does not exceed the prescribed threshold*.

*(“prescribed amount “ replaced by “ prescribed threshold” as per Finance Act July 2008)

(2) Sealed quotations shall be requested in writing from not less than 3 bidders, unless the item in question is not available from 3 suppliers.

(3) The request shall contain a clear statement of the requirements of the public body as to quality, quantity, terms and time of delivery and other special requirements, together with such other information as may be prescribed. (Circular 4 of 2008)

(4) Each bidder may submit one sealed quotation, which may not be altered or negotiated.

21. Emergency procurement

Sub Paragraph 21(3)(d)(Amended) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2015 Act No. 9 of 2015 G>G No. 82 of 2015 of 08 August 2015)

(“and” has been replaced by “ or” as per The Additional Stimulus Package (Miscellaneous Provisions) Act 2009 – G.N. No. 32 of 2009)

(1) A public body may purchase goods, other services or works from a single supplier without competition in cases of extreme urgency.

(2) The scope of the emergency procurement shall as far as possible be limited to the period of the emergency, so that appropriate competitive procurement methods may be utilised at the conclusion of the emergency period.

(3) For the purposes of this section, "extreme urgency" includes a situation wherein -

(a) the country is either seriously threatened by or actually confronted with a disaster, catastrophe, war or Act of God;

(b) life or the quality of life or environment may be seriously compromised;

(c) the condition or quality of goods, equipment, building or publicly owned capital goods may seriously deteriorate unless action is urgently and necessarily taken to maintain them in their actual value or usefulness; or

(d) a capital project may be seriously delayed for want of an item of a minor value.

22. Community and end-user participation

Where the participation of the procurement end-user or beneficiary community may result in enhancing the economy, quality or sustainability of the service to be procured, or the very objective of the project is to create employment and involvement of the beneficiary community, such end-user or community may participate in the delivery of services in accordance with such procedure as may be prescribed.

23.Departmental execution

In the case of works which are carried out with government resources, procurement may be effected by the public body itself where one or more of the following conditions are present, namely where -

(a) an activity is not likely to attract bidders, at least not at a reasonable price, in view of its size, nature, location or scattered location or financing or high mobilisation costs for outside suppliers;

(b) an activity is such that, if carried out by a contractor, it would impose an unacceptable risk on the contractor because the cost cannot be determined in advance;

31. Submission of bids

(1) Subject to this section, a bid shall be submitted in writing, duly signed and in a sealed envelope at the address specified in the bidding documents.

(2) Invitations for prequalification and bidding documents may contain provision that allows submission of applications to pre-qualify or bids by hand or mail or by courier at the option of the bidder.

(3) The bidding documents may authorise other methods for the submission of bids where it is so prescribed.

32. Deadline for the submission of bids

(1) A public body shall set a deadline for the submission of bids, applications for prequalification and expressions of interest so as to allow sufficient time for their preparation and submission, with a view to maximising competition, which shall not be less than such minimum period as may be prescribed.

(2) A bid in a sealed envelope received after the deadline for submission shall be returned unopened to the bidder.

33. Withdrawal and modification of bids

A bidder may modify, substitute, or withdraw its bid after submission, where the written notice of the modification, substitution or withdrawal is received by the public body before the deadline for the submission of bids.

34. Bid validity period

(1) Every bid shall remain valid for the period of time indicated in the bidding documents which shall not be more than 180 days.

(2) The validity period of a bid may be extended only with the agreement of the bidder concerned.

(3) A bidder who agrees to an extension of the validity period of his bid shall also furnish a corresponding extension of his bid security, if security was required for the original bid submission.

35. Disqualification of bidders and suppliers

(Subsection (1A)(a) (Added) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2017 Act No. 10 of 2017- G.G No 70 of 24 July 2017)

Directive 8;

(1) Every public body shall ensure that no disqualified supplier, contractor or consultant is permitted to receive a procurement contract or otherwise participate in procurement proceedings.

(1A) (a) A public body may, in a bidding exercise, exclude a bidder-

(i) whose performance in a previous public contract has been deficient; or

(ii) who has failed to deliver goods, works or services satisfactorily,

and has caused prejudice to the public body with regard to contractual requirements notwithstanding that the bidder is not disqualified.

(2) The Policy Office shall, by regulations, make provision concerning the disqualification standards and procedures for suppliers, contractors and consultants.

36. Opening of bids

Regulation 27; Regulation 32;

(1) Every bid shall be opened at the time and place indicated in the bidding documents.

(2) The time of bid opening shall coincide with the deadline for the submission of bids, or follow immediately thereafter, if this is necessary for logistic reasons.

(3) Every bidder or his representative shall be authorised to attend the bid opening.

(4) The name of the bidder, the total amount of each bid, any discount or alternative offered, and the presence or absence of any bid security, if required, shall be read out and recorded, and a copy of the record shall be made available to any bidder on request.

(5) No decision regarding the disqualification or rejection of a bid shall be taken or announced at the bid opening session.

37. Examination and evaluation of bids

Regulation 4; Regulation 34; Evaluation Guide: - Works and Goods; Consultancy Services;

(New subsection 37 (10A) (Added) as per G.N 111of 14 December 2013)

(1) The Board, in the case of a major contract, or a public body may seek clarification during the examination of bids from any bidder to facilitate evaluation, but it shall neither ask nor permit any bidder to change the price or substance of his bid.

(2) The Board, in the case of a major contract, or a public body shall, in order to evaluate bids, set up a bid evaluation committee, selected from a list of qualified evaluators maintained by it.

(3) Following the opening of bids, the Board, in the case of a major contract, or a public

body shall -

(a) examine the bids in order to determine whether they are complete and in accordance with the bidding documents; and

(b) ascertain whether -

(i) they are properly signed; and

(ii) the documents required to establish their legal validity and the required security have been furnished.

(Subsections 1, 2 and 3 amended as per The Additional Stimulus Package (Miscellaneous Provisions) Act 2009 –G.N. No. 32 of 2009)

(4) Where a prequalification procedure is applicable, a bid received from an entity other than a pre-qualified bidder shall be rejected.

(5) Where a bid discloses an arithmetical error, the error shall be corrected and the bidder

notified.

(6) Where there is a discrepancy between figures and words, the amount in words shall prevail, and the mistake shall be corrected and the bidder notified.

(7) Where a bidder refuses to accept a correction made pursuant to subsection (5) or (6) his bid shall be rejected and the bid security forfeited in accordance with section 30(2)(b).

(8) Where there is a minor deviation in any bid that did not warrant rejection of the bid at an earlier stage, such minor variation shall be quantified in monetary terms, as far as possible.

(9) Every bid shall be evaluated according to the criteria and methodology set out in the bidding documents and the evaluated cost of each bid shall be compared with the evaluated cost of other bids to determine the lowest evaluated bid.

* (9A) Where the bidding documents provide for a margin of preference to domestic suppliers or to domestic small and medium enterprises, the applicable margin of preference shall be at the rate determined by the Policy Office.

* (New Section 9A added as per Finance Act July 2008)

(10) Where a prequalification procedure is applicable, the qualifications of the lowest evaluated bidder shall be verified anew to take account of any change since the original prequalification.

(10A) (a) Where a public body or the Board-

(i) is of the view that the price, in combination with other constituent elements of the bid, is abnormally low in relation to the subject matter of the procurement; and

(ii) has concerns as to the ability of the supplier to perform the procurement contract,

it may request in writing from the supplier such information as it considers necessary.

(b) Where, after having taken into account any information furnished by the supplier under paragraph (a) and the information included in the bid, the public body or the Board still has concerns as to the ability of the supplier to perform the procurement contract, it may reject the bid.

(11) The bid evaluation committee shall prepare an evaluation report detailing the examination and evaluation of bids and identifying the lowest evaluated bid that meets the qualification criteria.

(12) In the exercise of its function, the bid evaluation Committee shall act without fear or favour and shall not be subject to the direction or control of any other person or authority

38. Post-qualification

Regulation 20;

(1) Where there was no prequalification procedure, the qualifications of the lowest evaluated substantially responsive bidder shall be checked against the criteria specified in the bidding documents.

(2) Where the bid fails to conform to those criteria, the bid shall be rejected and the same check shall be applied to the next ranked bid.

39. Cancellation of bidding process

Regulation 31; Regulation 36; Regulation 37;

(Subsection (1)(c) (Amended), Subsection (1)(d) (Amended) , subsections (1) (e) & (1)(f) (Added) and subsection (3) (Amended) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2016 Act No. 18 of 2016- GG No.79 of 7 September 2016). Sub-paragraph (5) (Added) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2015 Act No. 9 of 2015 of 2015 of 08 August 2015)

(1) A public body may, at any time prior to the acceptance of a bid, reject all bids, or cancel the public procurement proceedings where -

(a) all the bids are non-responsive;

(b) the lowest evaluated bid is substantially above the applicable updated cost estimate;

(c) the goods, works or services are no longer required;

(d) it has been established that there has been collusion among the bidders;

(e) the bidding document requires substantial modification making it more convenient to restart a new bidding process; or

(f) after the closing date and time for submission of bids and before the opening of bids, it is determined that one or more bidders were unable to submit bids due to such circumstances as may be prescribed.

(2) Written notice of the rejection of all bids, or cancellation of the public procurement proceedings, shall be given to all bidders that submitted bids.

(3) There shall be no invitation to re-bid for the procurement on the same specifications and contract conditions unless the rejection of all bids or cancellation of procurement proceeding is made on a ground specified in subsection (1)(a), (b) or (f).

(4) Where the invitation for the procurement is to be repeated, the reason for the rejection of all bids or the cancellation of the procurement proceedings shall be examined by the public body and the technical specifications, or contract conditions shall be suitably modified.

(5) where public procurement proceedings are cancelled by a public body under this section, no challenge under section 43 and no application for review under section 45 shall be entertained in respect of the cancellation.

40. Award of procurement contracts

Regulation 38;

Subsection (2C) (Added) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2016 Act No. 18 of 2016- GG No.79 of 7 September 2016)

(New subsection (2B) (Added) and subsection (4) (Amended) as per The Economic And Financial Measures (Miscellaneous Provisions) Act 2012 Act No.27 of 2012- GN.No.129 of 22 December 2012) sub-section (1) Amended) and (IA)(Added) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2015 Act No. 9 of 2015 of 2015 of 08 August 2015)

(1) A procurement contract shall, subject to subsection (1A), be awarded by a public body to the bidder having submitted the lowest evaluated substantially responsive bid which meets the qualification criteria specified in the prequalification or bidding documents, following the steps outlined in subsections (3) and (4).

(1A) The chief executive officer of a public body shall, before awarding a contract under subsection (1), certify and keep on record that all the procurement rules have been complied with in accordance with this Act.

(2) There shall be no negotiation between a public body and a selected bidder or other bidders except in such special circumstances as may be prescribed.

(2A) In the case of a major contract, the Board shall, where special circumstances provided in subsection (2) apply, initiate and oversee the negotiation between a public body and a selected bidder or other bidders in accordance with such instructions as may be issued by the Policy Office.

(2B) Notwithstanding subsection (1), where the specificity of the subject matter of a procurement requires recourse to more than one contractor to execute the procurement contract and the public body intends to award a procurement contract to more than one contractor based on rates, the public body may award the contracts after the determination of a common rate and the pre-qualification exercise of the contractors.

(2C) Notwithstanding subsection (1), a public body may limit the award of the number of lots to suppliers provided that such limitations are based on non-discriminatory criteria for determining which lots shall be awarded to substantially responsive suppliers that shall be indicated in the bidding document.

(3) A public body, in relation to a procurement contract, the value of which is above the prescribed threshold, shall notify the successful bidder in writing of the selection of its bid for award and a notice in writing shall be given to the other bidders, specifying the name and address of the proposed successful bidder and the price of the contract.

(Subsection 2A added and subsection 3 amended as per The Additional Stimulus Package (Miscellaneous Provisions) Act 2009 –G.N. No. 32 of 2009)

(4) In the absence of a challenge by any other bidder within 7 days of the date of

the notice referred to in subsection (3); the contract shall be awarded to the successful bidder.

(5) A successful bidder may be asked to submit a performance security and sign a contract within the period specified in the bidding documents.

(6) Where the bidder whose bid has been accepted fails to sign a contract, if required to do so, or fails to provide any required security for the performance of the contract within the prescribed time limit, the public body shall select another bidder from among the remaining valid bids, and subsections (3) to (5) shall apply to the new selection.

(7) A public body shall promptly publish, in such manner as may be prescribed, notice of every procurement award.

41. Debriefing of unsuccessful bidders

A public body shall promptly, on request of an unsuccessful bidder, inform that bidder of the reasons for which its bid, or its application for prequalification, was unsuccessful where the request for such debriefing was submitted within 30 days of the publication referred to in section 40(7).

42. Auditor's Certificate

The auditor of every public body shall state in his annual report whether the provisions of this Part has been complied with.

PART VI - CHALLENGE AND APPEAL

43. Challenge

Regulation 48; Regulation 50;

Subsection 43(1) (Amended) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2015 Act No. 9 of 2015 G.G No. 82 of 2015 of 08 August 2015)

(Subsection (1) (Amended) as per The Economic And Financial Measures (Miscellaneous Provisions) Act 2012 Act No.27 of 2012- GN.No.129 of 22 December 2012)

(1) A bidder who claims to have suffered, or to be likely to suffer, loss or injury due to a breach of a duty imposed on a public body or the Board by this Act may, subject to subsections (2) and (3) and section 39(5), challenge the procurement proceedings before the entry into force of the procurement contract..

(2) A challenge shall be in writing to the Chief Executive Officer of the public body concerned and identify the specific act or omission alleged to contravene this Act.

(3) A challenge shall not be entertained unless it is submitted –

(a) in the case of a challenge under section 24(12) or 40(4), within the time specified in the relevant subsection; or

(b) in any other case within such time as may be prescribed.

(4) Unless the challenge is resolved, the Chief Executive Officer of the public body shall suspend the public procurement proceedings and shall, within such time period as may be prescribed, issue a written decision, stating his reasons, and, if the challenge is upheld, indicating the corrective measures to be taken.

44. `Independent Review Panel

(Subsection (1B) (d) (Added) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2016 Act No. 18 of 2016- GG No.79 of 7 September 2016)

(Subsection 44(1)(a) and (b)(Repealed) and (Replaced), Subsection 44(1)(c) (Added), Subsection (1A) (Repealed) and (Replaced) , new Subsection 44(1B) and 44(1C) (Added) and Subsection 44 (4) (Amended) as per GN 111 of 14 December 2013)

(Subsection (1)(b) (Amended), subsection (1A) (Added) , subsection (2) (Repealed) and (Replaced) and subsection (4)_(Amended) as per The Economic And Financial Measures (Miscellaneous Provisions) Act 2012 Act No.27 of 2012- GN.No.129 of 22 December 2012)

(1) There shall be an Independent Review Panel which shall consist of -

(a) a Chairperson;

(b) a Vice-Chairperson; and

having wide experience in legal, administrative, economic, financial, engineering, scientific or technical matters and appointed by the President of the Republic, acting in accordance with the advice of the Prime Minister, tendered after the Prime Minister has consulted the Leader of the Opposition, on such terms and conditions as the Prime Minister thinks fit.

(1A) (a) The Review Panel shall sit in one or 2 divisions

(b) A division shall consist of the Chairperson or Vice-chairperson and 2 other members selected by the Chairperson.

(1B) (a) At any meeting of the Review Panel, the Chairperson or the Vice-chairperson and 2 other members shall constitute a quorum.

(b) In the absence of the Chairperson at a meeting of the Review Panel, the Vice-chairperson shall act as Chairperson of the meeting.

(c) In the absence of the Chairperson and Vice-chairperson at a meeting of the Review panel, the members present shall elect a member to act as Chairperson of the meeting.

(d) The Vice-chairperson and members shall be under the administrative control of the Chairperson.

(1C) (a) There shall be a Secretary of the Review Panel who shall be a public officer.

(b) The Secretary of the Review Panel shall be under the administrative control of the Chairperson of the Review Panel.

(2) Every member shall hold office for a period not exceeding 3 years and shall be eligible for reappointment for one further term.

(3) The President shall, on the advice of the Prime Minister, at any time terminate the appointment of a member who has been guilty of –

(a) any misconduct, default or breach of trust in the discharge of his duties;

(b) an offence of such nature as renders it desirable that his appointment should be terminated.

(4) The Review Panel shall, subject to section 45, seek to avoid formality in its proceedings and shall conduct them in such manner as may be prescribed.

45. Right of review

Regulation 48; Regulation 49; Regulation 50;

Subsection 45(1) (Amended), subsection 45(2)(ba) (Added) 45(2A)(Added) , 45 (2A) (Added), subsection 45(2B) (Added), 45 (3) (Amended), 45 (2A) (Amended) and subsection 45(8) (Repealed) and (Replaced) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2015 Act No. 9 of 2015- GG No.82 2015 of 08 August 2015)

(Subsection 45(2)(b) (Repealed) and (Replaced), subsection 45(ba) (Repealed), subsections 45(2A) and 45(2B) (Repealed), 45(3)(d) (Added), 45(4) (Repealed) and (Replaced) and 45(7) (Amended) as per The Economic And Financial Measures (Miscellaneous Provisions) Act 2013 Act No.27 of 2013- GN.No.111 of 14 December 2013)

(Subsection (1)(c) (Repealed) and (Replaced), subsection (2) new paragraph (ba) (Added), new subsection (2A and 2B)(Added), subsection 3 new paragraph (c) (Added) and subsection (8) (Repealed) and (Replaced) as per The Economic And Financial Measures (Miscellaneous Provisions) Act 2012 Act No.27 of 2012- GN.No.129 of 22 December 2012)

(1) An unsatisfied bidder shall, subject to section 39(5), be entitled to ask the Review Panel to review the procurement proceedings where -

(a) the Chief Executive Officer of the public body does not issue a decision within the time specified in section 43(4);

(b) he is not satisfied with the decision; or

(c) after the entry into force of the procurement contract, the value of which is above the threshold prescribed by regulations but does not exceed the prescribed threshold referred to in section 40(3), he is not satisfied with the procurement proceedings on a ground specified in section 43(1).

(2) An application for review under subsection (1) shall -

(a) be in writing;

(b) specify the precise reasons for making the application;

(ba) be accompanied by a statement of case and a witness statement, if any; and

(2A ) (a) For the purpose of subsection (2), a statement of case shall contain precisely and concisely-

(i) the facts of the case;

(ii) where a challenge has not been resolved, the reasons stated in the written decision issued pursuant to section 43(4). If any;

(iii) the issues in dispute and the arguments relating thereto;

(iv) submissions on any point of law; and

(v) any other submission on the case.

(b) A witness statement shall contain a signed statement by the witness certifying that the witness statement faithfully reproduces the facts obtained from the examination of records, statements or other documents or from any other source in relation to the case before the Review.

(2B) (a) The unsatisfied bidder shall, at the time of his application for review, submit the public body a copy of the application together with the documents specified in subsection (2)

(b) The exchange of information and particulars relating to the statement of case and witness statement referred to in subsection (2A) shall be carried out in such form and manner as may be prescribed.

(3) (a) An applicant for a review shall be required to make a deposit as may be prescribed for filing the application.

(b) Where the Review Panel determines that the application was frivolous, the deposit made shall be forfeited.

(c) An applicant shall pay a non-refundable fee for processing the application in such amount, within such time and in such manner as may be prescribed.

(d) Where the Review Panel determines that there is no merit in the application, 50 per cent of the deposit under paragraph (a) shall be forfeited.

(4) Subject subsection (5) or (8), where an application for review is made in accordance with this section, the Review Panel shall, on being satisfied ex-facie the application that there is a prima facie case for review, order the suspension of the procurement proceedings until the appeal is determined by the Review Panel.

(5) The suspension provided by subsection (4) shall not apply where the public body certifies that urgent public interest considerations require the procurement proceedings to proceed.

(6) A certificate issued by a public body pursuant to subsection (5) shall expressly state the grounds of the urgent public interest considerations and shall be made a part of the record of the public procurement proceedings.

(7) A certificate issued by a public body pursuant to subsection (5) shall be binding on the Review Panel and the procurement proceedings shall proceed.

(8) (a) Subject to paragraph (c), the Review Panel shall determine an application for review under this section within such period as may be prescribed.

(b) Subject to paragraph (c), any application for review pending immediately before the commencement of paragraph (a) shall, on the commencement of that paragraph, be determined within such period as may be prescribed.

(c) Where the Review Panel does not determine the application for review within the period referred to in paragraph (a) or (b)-

(i) the suspension of the procurement proceedings under subsection (4) shall lapse;

(ii) the public body shall proceed with the award of the contract; and

(iii) the Review Panel shall continue with the application for review

(d) where an application for review is determined pursuant to paragraph (c), the Review Panel may dismiss the application for review or may, if it determines that there is merit in it, order the remedy referred to in subsection (10)(d).

(9) Where the procurement proceedings have not been suspended under subsection (5), and the application for review of an unsatisfied bidder is determined in his favour, the Review Panel shall award him compensation limited to the recovery of the costs of bid preparation and participation in the procurement proceedings.

(10) The Review Panel may dismiss an application for review or may, if it determines that there is merit in it, order one or more of the following remedies -

(a) prohibit the public body from acting or deciding in an unauthorised manner or from following an incorrect procedure;

(b) recommend the annulment in whole or in part of any unauthorised act or decision of the public body;

(c) recommend a re-evaluation of the bids or a review of the decision for an award, specifying the grounds for such recommendation; or

(d) recommend a re-evaluation of the bids or a review of the decision for an award, specifying the grounds for such recommendation; or recommend payment of reasonable costs incurred in participating in the bidding process where a legally binding contract has been awarded which, in the opinion of the Review Panel, should have been awarded to the applicant.

PART VII-PROCUREMENT CONTRACTS

46. Contents of contracts

Section (4A) (Added) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2016 Act No. 18 of 2016- GG No.79 of 7 September 2016)

(1) A procurement contract shall include the terms and conditions that are set out in the bidding documents or request for proposals as well as -

(a) the names, addresses and telephone and fax numbers, of the contact persons of the parties to the contract;

(b) the scope of the work;

(c) the order of priority of contract documents;

(d) the contract price or its mode of determination;

(e) the conditions of acceptance; Regulation 60; Regulation 61;

(f) the conditions and mode of payment; Regulation 62; Regulation 63;

(g) the modalities of 'force majeure';

(h) the price adjustment mechanisms; Regulation 25;

(i) the provisions for termination of the contract; Regulation 64;

(j) the procedure for dispute resolution; and Regulation 65; Regulation 67;

(k) the applicable law.

(2) Any amendment to the contract, other than changes which do not alter the basic nature or scope of the contract, shall be expressly agreed by the parties in writing.

(3) An amendment to the contract that will increase the contract value by more than 25 percent shall require fresh procurement proceedings except where the amendment must be effected for a reason specified in section 25(2) (c) or (d).

(4) No formal amendment of the contract shall be required where the public body wishes to make a variation or invokes a contract price adjustment which is expressly authorised in the contract.

(4A) No -

(a) amendment requiring fresh procurement proceedings under subsection (3);

(b) variation or adjustment under subsection (4); or

shall be made or carried out, as the case may be, with respect to major contracts that exceed the prescribed amount, without the prior approval of the Board.

(5) There shall be included in every procurement contract a clause ensuring –

(a) rates of remuneration and other conditions of work of the workers engaged in the execution of the contract that are not less favourable that those established for work of the same character in the trade concerned –

(i) by collective agreement applying to a substantial proportion of the workers and employers in the trade concerned;

(ii) by arbitration awards; or

(iii) by Remuneration Regulations made under the Employment Relations Act 2008;

(b) where remuneration and conditions of work are not regulated in a manner referred to in (a), rates of remuneration and other conditions of work which are not less favourable than the general level observed in the trade in which the contractor is engaged by employers whose general circumstances are similar.

(6) No contractor shall be entitled to any payment in respect of work performed in the execution of the procurement contract unless he has, together with his claim for payment, filed a certificate –

(a) stating rates of remuneration and hours of work of the various categories of workers employed in the execution of the contracts;

(b) stating whether any remuneration payable in respect of work done is due;

(c) containing such other information as the public body administering the procurement contract may require to satisfy himself that the provisions of this Act have been complied with.

(7) Where the public body administering the procurement contract is satisfied that remuneration is still due to a worker employed on a public contract at the time the claim for payment is filed under subsection (2), he may, unless the remuneration is sooner paid by the contractor, arrange for the payment of the remuneration out of the money payable under the procurement contract.

(8) Except with the written consent of the public body administering the contract, no contractor shall transfer or assign a procurement contract.

(9) Every contractor shall display a copy of subsections (5), (6) (7) and (8) at the place at which the work required by the contract is performed.

(10) In this section, “worker” has the same meaning assigned to it under section 2 of the Employment Rights Act 2008.

(Subsections 5, 6, 7, 8, 9 and 10 added after subsection 4 as per THE EMPLOYMENT RIGHTS ACT 2008 –Act No. 33 of 2008 –Second Schedule –Section 18(3) - Government Gazette No. 95 of 27 September 2008)

47. Payment

(1) Subject to such specific terms of a procurement contract, as may be prescribed, payment shall be made on the basis of the submission of a proper invoice.

(2) Payments due to a supplier shall be made in accordance with the deadlines set out in the procurement contract and the supplier shall be compensated for late payment by payment of interest in accordance with the rate specified in the contract or, if no such rate is specified, at the legal rate.

48. Termination and breach

Notwithstanding any other enactment –

(a) a public body may terminate a procurement contract for its convenience at any time upon a determination that because of changed circumstances the continuation of the contract is not in the public interest; and

(b) upon such a termination, the contractor will be entitled to reimbursement of expenses incurred in the performance of the contract, but will not be entitled to recover anticipated profits on the completion of the contract. ( Regulation 64 & Regulation 65 & Regulation 66 and Regulation 67)

PART VIII-PROCUREMENT INTEGRITY

49. Artificial division

No public body may artificially divide the modalities of procurement in such a way as to avoid any monetary thresholds laid down in this Act or in an instrument drawn up pursuant to this Act.

50. Duties of public bodies

Regulation 68; Regulation 69;

(1) Every public body shall be responsible for ensuring that procurement functions are carried out by persons trained and knowledgeable in procurement, in accordance with guidelines and qualification requirements prescribed or laid down by the Policy Office.

(2) Every public body shall –

(a) engage in procurement planning with a view to achieving maximum value for public expenditure and the other objectives of this Act;

(b) make an annual plan for budgeting purposes and plan each step of procurement for major contracts in such manner as may be prescribed.

(3) Every public body shall record and preserve all documentation relating to any procurement proceedings in such manner as may be prescribed.

(4) Subject to this Act, all documents, notifications, decisions and other communications referred to in this Act shall be in writing.

(5) Where it is so prescribed, a public body may authorise the use of other forms of communication, including electronic communication, for publication of invitations to bid, transmission of bidding documents, submission of bids, conclusion of contracts and processing of payment.

(6) Where other means of communication are used in accordance with subsection (5), the public body shall ensure that -

(a) a record of the content of the communication is preserved;

(b) an adequate level of security and confidentiality is provided;

(c) the bidders' access to the records of the procurement proceedings is preserved; and

(d) any other requirement of this Act is complied with.

51. Conduct of public officials

(1) A public official involved in planning or conducting public procurement proceedings or contract administration, shall –

(a) discharge his duties impartially so as to ensure fair competitive access to procurement by suppliers;

(b) act in the public interest, and in accordance with the objectives and procedures set out in this Act;

(c) avoid conflicts of interest, and the appearance of conflicts of interest, in carrying out his duties and conducting himself; Regulation 72; Regulation 74

(d) not commit or abet any corrupt or fraudulent practice, including the solicitation or acceptance of improper inducements; Regulation 77;

(e) keep confidential any information that comes into his possession relating to procurement proceedings and to bids, including bidders' proprietary information; Regulation 78;

(f) for a period of 2 years after leaving the public service not accept a position of authority in any private concern with which he had official dealings; and

(g) declare his assets in such manner as may be prescribed.

(2) (a) No public official, or his close relative, shall participate as a bidder in procurement proceedings of that public body and no award of a procurement contract shall be made directly to such official or to any body in which he or his close relative, is employed in a management capacity or has a substantial financial interest.

(b) In the subsection, "close relative" includes spouse, child, grandchild or parent.

52. Conduct of bidders and suppliers

Regulation 75;

(1) A bidder or a supplier shall not engage in or abet any corrupt or fraudulent practice, including the offering or giving, directly or indirectly, of improper inducements, in order to influence a procurement process or the execution of a contract, including interference in the ability of competing bidders to participate in procurement proceedings.

(2) A bidder or a supplier shall not engage in any coercive practice threatening to harm, directly or indirectly, any person or his property to influence his participation in a procurement process, or affect the execution of a contract.;

(3) A bidder shall not engage in collusion, before or after a bid submission, designed to allocate procurement contracts among bidders, establish bid prices at artificial non-competitive levels or otherwise deprive a public body of the benefit of free and open competition.

(4) A public body shall reject a bid if the bidder offers, gives or agrees to give an inducement referred to in subsection (1) and promptly notify the rejection to the bidder concerned and to the Policy Office.

(5) (a) Subject to paragraph (b), a bidder or supplier who is responsible for preparing the specifications or bidding documents for, or supervising the execution of a procurement contract, or a related company of such a bidder or supplier, shall not participate in such bidding.

Regulation 73; Regulation 79;

(b) Paragraph (a) shall not apply to the several bodies (consultants, contractors or suppliers) that together may be performing the supplier's obligations under a turnkey or design-build contract.

53. Suspension and debarment of bidders and suppliers

Section 53 (Amended) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2018 Act No. 11 of 2018- G.G No71 of 9 August 2018)

(Subsection (1) (Amended), paragraph (e) and (f) (Amended), paragraphs (g)-(k) (Added) and subsection (2) (Amended) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2017 Act No. 10 of 2017- G.G No 70 of 24 July 2017)

(1) Subject to subsection (2), the Director may, under such conditions as may be prescribed, suspend, debar or disqualify a potential bidder or supplier from participation in procurement on the following grounds -

(a) supplying false information in the process of submitting a bid or prequalification application;

(b) collusion between the bidders or a bidder and a public official concerning the formulation of any part of the bidding documents;

(c) interference by a supplier with the participation of competing bidders;

(d) misconduct relating to the submission of bids, including corruption, price fixing, a pattern of under-pricing bids, breach of confidentiality, misconduct relating to execution of procurement contracts, or any other misconduct relating to the responsibilities of the bidder or supplier;

(a) conviction for an offence relating to obtaining or attempting to obtain a procurement contract;

(b) conviction for an offence related to dishonesty or fraud in his professional activity;

(c) submitting a bid which contains inaccurate or inadequate information with a view to misleading a public body or the Board regarding the eligibility or responsiveness of its bid;

(d) refusing, where no bid security is required, to accept an award made to it and to enter into a contract with a public body, except in a situation of ‘force majeure’;

(e) repeated failure, in the performance of one or more contracts by the supplier, contractor or consultant, to comply with the terms and conditions of the contract or the specifications, as the case may be;

(j) committing a material breach of contract; or

(k) without the prior written approval of the public body, unlawfully assigning or subcontracting any of its obligations under a contract.

(2) A suspension, debarment or disqualification of a bidder or supplier under subsection (1) shall not be effected unless the Director-

(a) reviews and considers the factual record developed by the public body that proposes the action;

(b) gives reasonable notice to the bidder or supplier involved of the basis for the proposed action; and

(c) gives reasonable opportunity to the bidder or supplier to respond to the proposed action.

(3) A period of suspension, debarment or disqualification under subsection (1) shall not exceed 5 years.

PART IX - MISCELLANEOUS

54. Oath of office

Every member and officer shall, on assumption of duty, take such oath as may be prescribed.

55. Disclosure of interest

A member or officer having any direct or indirect interest in any matter brought before the Policy Office, the Board or the Review Panel -

(a) shall immediately inform the Director or the Chairperson, as the case may be; and

(b) shall not participate in the deliberations or any part of the decision-making process in relation to that matter.

56. Declaration of assets

(1) Subject to subsection (2), every member and officer shall file with the Secretary to the Cabinet a declaration of his assets and liabilities in such form and manner as may be prescribed -

(a) within 30 days of his appointment and

(b) on the termination of his appointment.

(2) Where, subsequent to a declaration made under subsection (1), the state his assets or liabilities is so altered as to be reduced or increased in value by not less than 500,000 rupees, the member or officer shall make a fresh declaration.

(3) No declaration of assets filed under this section shall be disclosed to any person except with the express consent of the member or officer concerned or by order of a Judge on reasonable cause shown.

57. Funds

The Policy Office, the Board and the Review Panel shall derive their funds from the Consolidated Fund and from any fees and charges levied by the respective institutions.

58. Undue influence

Regulation 75;

Any person who directly or indirectly, in any manner, influences, or attempts to influence, any member or public official or any member of the Policy Office, the Board, the Review Panel or a public body in the performance of his duties under this Act, shall commit an offence.

59. Immunities

No action shall lie against the Policy Office, the Board or the Review Panel, or any member or officer, for any act or omission, except in so far as the act or omission complained of was done in bad faith.

60. Offences

Any person who contravenes this Act shall commit an offence and shall, on conviction, be liable to a fine not exceeding 50,000 rupees and to penal servitude for a term not exceeding 8 years.

61. Regulations

(1) The Minister may, on the recommendation of the Policy Office, make such regulations as it thinks fit for the purpose of this Act.

(2) Regulations made under subsection (1) may provide for –

(a) detailed procedures;

(b) competent authorities;

(c) operational thresholds;

*(d) an alternative procurement method where any of the procurement methods

referred to in section 15(1) is not considered appropriate for any specific procurement;

*(New part 2(d) added to Section 61 as per Finance Act July 2008)

(e) time limits and other deadlines; and

(f) the levying of fees or charges by the Policy Office, the Board or the Review Panel; and

(g) the amendment of the Schedule.

(3) Regulations made under subsection (1) may provide that any person who contravenes them shall commit an offence and shall, on conviction, be liable to a fine not exceeding 10,000 rupees and to imprisonment for a term not exceeding 2 years.

62. Repeal

The Central Tender Board Act is repealed.

63. Consequential amendments

(1) The Public Private Partnership Act 2004 is amended in section 2, by deleting the definition of "Board" and replacing it by the following new definition -

"Board" has the same meaning as in the Public Procurement Act;

(2) Section 128 of the Local Government Act 2003 is repealed.

64. Transitional provisions

(1) Every act done by, or in relation to, the Central Tender Board established under the repealed Act shall be deemed to have been done, or commenced, as the case may be, under this Act.

(2) Any tender invited under the repealed Act, shall be deemed to have been invited as required under this Act.

(3) Any tender or contract that was approved under the repealed Act shall be deemed to have been approved under this Act.

(4) In this section, "repealed Act" means the Act referred to in section 62.

65. Commencement

This Act shall come in operation on a date to be fixed by Proclamation.

Passed by the National Assembly on the twelveth day of December two thousand and six.

R.R. DOWLUTTA

Clerk of the National Assembly

“Schedule” (Amended) as “First Schedule” as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2018 Act No. 11 of 2018- G.G No71 of 9 August 2018)

(Part I to V of the schedule to the Act have been amended as per Finance Act 2009 (G.G. No. 69 of 30 July 2009) and Part 1 Column (3) (Amended) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2015 Act No. 9 of 2015- Government Gazette No. 47 of 08 August 2015 and Part I Column (3) (Amended) as perGovernment Gazette No. 100 of 3 November 2018)

FIRST SCHEDULE

[Section 2]

Column 1 Column 2 Column 3

Public body Type of contract Prescribed amount

PART I

Local Authorities All Contracts Rs 25 million

Mauritius Qualifications Authority All Contracts Rs 15 million

Rodrigues Regional Assembly All Contracts Rs 25 million

Other parastatal bodies not specified

in Parts II, III, IV and V All Contracts Rs 15 million

Part II of the schedule to the Act has been amended as per G.N. No. 241 of 2013 and (The Open University of Mauritius Act 2010) (Act No. 2 of 2010) –State House (Proclamation No. 31 of 2012) and as per GN 78 of 2017

PART II

Ministries/Government Departments All Contracts Rs 50 million

Beach Authority

Polytechnics Mauritius Ltd

Farmer's Service Corporation

Financial Services Commission

Gambling Regulatory Authority

Irrigation Authority

Mahatma Gandhi Institute

Mauritius Educational Development Company Ltd

Mauritius Film Development Corporation

Mauritius Institute of Health

Mauritius Institute of Training and Development

Mauritius Meat Authority

Mauritius Oceanography Institute

Mauritius Standards Bureau

Mauritius Tourism Promotion Authority

National Computer Board

Open University of Mauritius

Private Secondary Schools Authority

Public Officers’ Welfare Council

Rodrigues Educational Development Company Ltd

Sir Seewoosagur Ramgoolam Botanical Garden Trust

Small Enterprises and Handicraft Development Authority

Sugar Industry Labour Welfare Fund

Sugar Planters Mechanical Pool Corporation

Tea Board

Tertiary Education Commission

Tourism Authority

University of Mauritius

University of Technology, Mauritius

Column 1 Column 2 Column 3

Public body Type of contract Prescribed amount

PART III

Goods, Civil

Engineering

Works & Capital

Goods Rs 50 million

Consultancy

Services Rs 50 million

Other Services Rs 50 million

Agricultural Marketing Board

Mauritius Examinations Syndicate

Outer Islands Development Corporation

PART IV

All Contracts Rs 100 million

Airports of Mauritius Ltd

Cargo Handling Corporation Ltd

Central Water Authority

Development Bank of Mauritius Ltd

Enterprise Mauritius

Information and Communication Technologies Authority

Mauritius Housing Company Ltd

Mauritius Ports Authority

Mauritius Revenue Authority

Mauritius Shipping Corporation Ltd

Mauritius Sugar Authority

National Housing Development Company Ltd

National Transport Corporation

Road Development Authority

State Informatics Ltd

State Investment Corporation Limited

State Property Development Company

Waste Water Management Authority

Column 1 Column 2 Column 3

Public body Type of contract Prescribed amount

PART V

Goods, Civil

Engineering

Works & Capital

Goods Rs 100 million

Consultancy

Services Rs 100 million

Other Services Rs 100 million

Central Electricity Board

Mauritius Broadcasting Corporation

State Trading Corporation

SECOND SCHEDULE

“Second Schedule” (Added) as per THE FINANCE (MISCELLANEOUS PROVISIONS) ACT 2018 Act No. 11 of 2018- G.G No71 of 9 August 2018)

[Section 3A]

Procurement by a diplomatic mission of Mauritius abroad

Procurement by a public body in respect of-

(a) rental of office spaces;

(b) training services; or

**********

Part I	-	Section 2	-	“public body” – (b)(iii) (amended) ) & (c) (repealed)
		Section 3	-	Subsection (1)(a) (amended)
				Subsection (2) (amended)
Part II		Section 7	-	Subsection (da) (amended)
				Subsection (db) (added)
		Section 7A	-	Subsection (1)(a) (amended)
Part III		Section 11	-	Subsection (1)(d) (amended)
Part IV		Section 16	-	Subsection (numbered (1) and subsection (2) added)
		Section 18	-	Subsection (2) (repealed)
SCHEDULE (Section 2)			-	(Amended)

Part IV	- 20(1) (Amended as per Finance Act July 2008)
Part V	-	37 (New Section 9A added as per Finance Act July 2008)
Part IX	-	61(2) (New part 2(d) added to Section 61 as per Finance Act July 2008)

Part II	-	Section 7	-	New subsection (da) (added)
				New section 7A (added)
Part III	-	Section 14	-	New subsection 6 (added)
Part IV	-	Section 21	-	Subsection 3(c) (amended)
Part V	-	Section 26	-	Para. 26 (repealed and replaced)
Part V	-	Section 28	-	Subsection 1 (renumbered and subsection 2 added)
Part V	-	Section 37	-	Subsections 1, 2, & 3 (amended)
Part V	-	Section 40	-	Subsection 2A added and subsection 3 (amended)

Part VII	-	Section 46 -	Subsections 5,6,7,8,9 & 10 added after subsection 4

AMENDMENTS 2008
Part III	-	New Section 11A (added as per Finance Act July 2008)