Re: Post qualifications in procurement process

**RJM** Mon Sep 23, 2013 8:59 pm

Freddy, Id2013 & RSM,

To me, I think the main problem is the absence a clear methodology of conducting Post-qualification/Due Diligence as well as the scope of the process. I am aware that some of the Procuring Entities tend to group the post-qualification process into two stages;

Stage 1 - Check if the information submitted by the lowest evaluated responsive bidder meet the post-qualification criteria stipulated in the bidding documents – This is normally done by the evaluation committee and treated as the part evaluation process. This is a smooth process as it is crystal clear what is expected from the evaluation committee.

Stage 2 - Physical (site/inspection visits) and verification/validation of the submitted documents (check the veracity of the documents and confirmation from the third party). This is a rough process as it is not clear who is responsible for this stage. In absence of clear procedures as who should take part in the process, everybody in the Procuring Entity tend to think he/she is eligible to participate because of the “benefits attached to the process” (most of the practitioners speculate that this is the motives behind). I have heard that even Tender Board members and Accounting Officers are striving to be part of the team and some have managed.

Going by the definition provided in the GN 97/2005, may lead to different interpretations on whether or not the two above referred stages are enshrined in the Regulation. The referred definition is reproduced below for easy referencing.

“Post-qualification” means a formal procedures applied after tenders have evaluated prior to award of contract, to determine whether or not the lowest evaluated tenderer … has the experience, capability and resources to carry out the contract effectively”.

By this definition, even myself, I am not sure whether or not the two stages are separate. If the two stages are separate, then, one could argue that stage 1 should not be part of the evaluation process and vice versa.

I remember in one particular case (still searching for this case in my archive) PPAA ruled out that the criteria for physical verification (site inspection/visit) used by the Procuring Entity was invalid as it was not stated in the bidding documents. I think PPAA’s position is that if the Procuring Entity intends to expound its post-qualification process it should state so in the invitation to treat and should be known to all prospective bidders.

I think it is high time now we have a Methodology for Conducting Post-qualification/Due Diligence which clearly distinguishing these stages or combining them in the legislation. I am in favor of distinguishing the two stages and attach responsibilities and accountability those who are involved.

For now!

id2013 Mon Sep 23, 2013 7:29 pm

Freddy
It was proper for what did by Tender Board and also was proper for your resubmission of the evaluation reporting which included the post qualification in accordance to Section 48 of PPA 2004.
For the benefit of the platform I reproduce the section;
Section 48, Post qualification states that ''
Sec 48 (1) If tenderer s have not been pre-qualification, the procuring entity and the tender board shall determine whether the tenderer whose tender or proposal has been determined to offer the lowest evaluated tender, in the case of procurement---------------- has capability and resources to carry out effectively the contract as offered in the tender.

Sec48 (2) The criteria to be met shall be set out in the tendering documents and if the tenderer does not meet any of these criteria, the tender shall be rejected and the procuring entity and tender board shall make similar determination for the next lowest evaluated tenderer in the case of procurement or --------------------

Sec 48 (3) A procuring entity and tender board may require a tenderer which has submitted the lowest evaluated tender in case of procurement ---------------------to demonstrate again its qualifications before the award of contract is confirmed.

Sec 48 (4) The criteria and procedures to be used in subsection (3) shall be the same as those in the pre-qualification proceedings set out in section 47 of this Act and shall be specified in the tendering documents prepared by the procuring entity.

Sec 48 (5) If tenderer with the lowest evaluated or ---------- fails to post qualify, the procuring entity and tender board shall reject its tender and shall select the next lowest or ------------ from the remaining tenders, subject to the right of the procuring entity to reject all remaining tenders.

Given to facts from the reproduced legislation you find that it is mandatory to the PE during the evaluation process to undertake the post qualification basing on the submitted documents using the criteria spelt out the solicitation document. Further this section read together with that of Regulation 94, GN No. 97, 2005 of the same Act which gives the modality of carrying out the exercise under discussion.
However, the question remains on the wording/paragraph and from my earlier submission, and from the RSM opinion that it is not proper to use both Procuring entity and tender board as it is noted under subsection 1,2 and 3 which all organs have been used in the same line and meaning, so it is not clearly who suppose to undertake the post qualification.
But basing from Regulation 90, GN No. 97, 2005 which explains the evaluation process and who is doing the evaluation (i.e evaluation committee, Rg 90 (1)) read together with under sub-regulation 22-24 which tell us the committee to undertake the post qualifications in accordance to section 48 reproduced above, So,it is in conclusive that the post qualifications is normally done by Evaluation Committee in the evaluation exercise.

I submit in a while!

freddy.mbeyella Mon Sep 23, 2013 4:55 pm

I do agree with RMS response on process of post qualification. Perhaps what is not clarified in who is supposed to carry out the process? Is it the Evaluation Team, Tender Board or a separate Post Qualification Committee? How is post qualification is conducted?

I once participated in evaluation process whereby requirement for post qualification was stated in the bidding document. We prepared the report in accordance with guideline issued by PPRA. In the evaluation report we suggested that post qualification should be undertaken based on criteria stated in bidding document upon approval of tender board before award of contract. To our surprise we were told that the report is incomplete as it is missing post qualification report based on submitted documents by bidder. We prepared a summary on lowest evaluated bidder showing financial status, reference sites, equipment and qualification of key personnel and submitted as post qualification report based on documentation. Is it proper?

**RSM** Mon Sep 09, 2013 6:13 pm

Id2013,

You have put up a most important issue for discussion. Without going into the details of the law and regulations, in simple terms post- qualification is a verification exercise of the information submitted by a perfson whom you are about to award a contract. It is therefore the last action before the final decision to award a contract to that person is made. For that reason it is obvious that it must be done after that person has been identified.

The role of the evaluation committee is to determine this person through the evaluation process, and the tender board must be satisfied that indeed that person has emerged the winner (the lowest evaluated bidder in case one is buying or the highest evaluated bidder in case one is selling) during the evaluation process. Logically therefore post-qualification will follow after the Tender Board has approved the name of the winning bid.

I think also it is wrong to use Procuring Entity and Tender Board in the same section. For me the words "and the tender board" in sections 48(1) and 48(3) should be removed.

I beg to submit for now

id2013 Wed Jul 31, 2013 8:14 pm

Dear Forum Members,
Under Section 48 (1) and Section 48 (3) of PPA 2004 states that, I reproduce as follows;-

Section 48 (1) if tenderer have not been pre-qualified, the procuring entity and the tender board shall determine whether the tenderer whose tender or proposal has been determined to offer the lowest evaluated tender, in the case of procurement or the highest evaluated tender in the case of disposal of public assets by tender, has the capability and resources to carry out effectively the contract as offered in the tender.

Section 48 (3) A procuring entity and tender board may require a tenderer which has submitted a lowest evaluated tender in the case of procurement or highest evaluated tender in case of disposal by tender to demonstrate again its qualifications before the award of contract is confirmed.

From the above provisions of law I do not understand clearly the followings issues;-
One, Who suppose to undertake the post qualifications in eyes of law?

Two, In connection to question one above, who is the procuring entity and who is the tender board suppose to supersede over the another in course of post qualifications in the line of this provision of law?

Three, At what time the post qualification should be done in the line of this provision of law?, that at evaluation process that means to be done by Evaluators in accordance to Regulation 94/GN.NO,97/2005?, , OR that the tender board in its meeting to deliberate the evaluation report?, or Procuring entity and who is procuring entity in line of this provision of law?

The help is highly needed in order i can not proceed to make mistakes in this important requirement during the tendering process.

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Post qualifications in procurement process