Government agencies shall mainly take into consideration the interest of the agency, the criteria concerning pricing, and other criteria in making a determination. These include:
- costs of supplies and the life of supplies;
- standards of products or services;
- after-sales service;
- supplies that the government intends to promote or support;
- evaluation of performance of entities;
- technical or other offers if there is a requirement to submit technical or other offers; and
- other criteria as specified in ministerial regulations.
The minister will issue regulations specifying criteria concerning review and selection in a tender. The government agency must choose one particular criterion or more coupled with criteria concerning pricing, and shall allocate weight to each criterion clearly. However, if the agency is unable to select other criteria to be used, and it is necessary to use a single criterion to review and make a selection, the criteria on pricing must be used, together with a score – with reasons for the score for each criterion.
Pre-qualification is a requirement for participating in a government tender under the Procurement Act. A person submitting a tender in public procurement must have the following qualifications:
- being legally competent;
- not being declared bankrupt;
- not being in the process of dissolution;
- not being subject to a suspension on making a tender offer or entering into an agreement with a government agency under the Procurement Act;
- not being a person whose name has been circulated as a person abandoning the work of government agency; and
- having other qualifications, or not having disqualifications, as specified and published in the Government Gazette by the Policy Committee.
The responsible government agency must also specify conditions in the announcement and invitation documents, requiring persons making a tender offer to provide proof of the extent of competence and readiness so possessed, on the date of submission of the offer.
Certain types of entities – for example, construction business operators and consultants – must be registered so that they are qualified to submit bids to government agencies.
Yes, the Procurement Act provides the criteria for blacklisting and the "abandonment of work" condition, if it appears that a bidder or contracting party to a government agency has been selected but failed to execute a contract or written agreement with the government agency within the time specified, or the contracting party breached the contract or written agreement, acted in a manner that obstructed fair competition, or acted in bad faith.
Government agencies are prohibited from engaging persons or entities that appear on a circulated list of those who have abandoned work, including juristic persons and partners, managers, managing directors, executives, or authorized signatories of juristic persons, unless the person or entity has been de-listed.
A person or entity listed as having abandoned work may request de-listing if, at the very least, it has:
- financial stability;
- paid all taxes as required by law; and
- the period of time to circulate the list of names of persons abandoning work has lapsed.
The criteria and procedures for an application to de-list, and the consideration and revocation order, must be in accordance with regulations specified by the ministry.
Under the Procurement Act, the Government agency may organize a hearing of opinion on the draft scope of work or details of supplies to be procured and the draft TOR from business operators in accordance with regulation specified by the minister of finance. As such, there should not be any conflict of interest if the regulation is fully complied with.
Bidders may combine to submit the bid in a form of joint venture or consortium when the TOR allows it.
The membership of a bidder consortium cannot be changed during a procurement procedure.
The government agency may cancel the procurement if they find that the bidders had joint benefit in the procurement. The Procurement Regulations generally defines "a bidder with joint benefits" means an individual or juristic person who offers to sell in a government procurement of supplies or who offers a price to be hired to make supplies, or who offers work to be hired as a consultant, or to be hired to design and supervise work for any government agency, and has a direct or indirect interest in the business of another individual or juristic person who offers to sell or offers work to such government agency at the same time.
The Procurement Act provides that, before the execution of an agreement, a government agency may announce the cancellation of procurement previously agreed if the successful bidder or the selected bidder having joint benefit with, or has an interest with, another bidder; or obstructs fair competition; or engages in bid rigging with other bidders or officials; or there is any indication of any other fraudulent conduct in placing a bid, subject to the regulations specified by the ministry.
The cancellation of procurement is the privilege of the government agency. Persons submitting bids in a cancelled procurement procedure may not claim any damages from the government agency.