(a) Advice to the Head of Entity on the decision to use commercial procurement practices
In general, all public sector entities are required to apply the Public Procurement Act to their procurement activities. However, there are some instances where the use of commercial procurement practices may be allowed. By approval of the Board, a procurement entity may undertake procurement in accordance with established commercial practices if:

• The entity is legally and financially autonomous and operates under commercial law;
• It is beyond contention that public procurement practices are not suitable, given the strategic nature of the procurement;
• The proposed procurement method will ensure value for money, provide competition, and transparency to the extent possible.
  For the case under consideration, the entity does not operate under commercial law, and there is no evidence to suggest that public procurement practices are not suitable. I advise that the entity in question should comply with the public procurement practices instead of the commercial practices.

(b) Tendering procedures in the procurement of contractors for the construction of the silos
Competitive tendering procedure involves the following:

• Invitation of tenders and prequalification
• Submission of tenders
• Evaluation and comparison of tenders
• Selection of a tender and contract offer and acceptance
• Contract administration

Invitation of tenders and pre-qualification
The first stage of the competitive tendering procedure is invitation of tenders and prequalification. A procurement entity shall invite tenders or, where applicable, applications to prequalify by causing an invitation to tender or an invitation to prequalify, to be published in the Procurement Bulletin and on the website of the National Procurement Board for a fee to be determined by the Board. The invitation to tender or invitation to prequalify shall also be published in at least one daily newspaper of wide national circulation. The invitation may also be published in a newspaper of wide international circulation, in a relevant trade publication, or technical or professional journal of wide international circulation when international competitive tendering is concerned.

Submission of tenders
This is the second stage of the tendering process, and the main concerns are the language of tenders, submission information, the extension of deadlines, and acknowledgement of receipt of submission. One important issue in submission of tenders is the language in which the tender is submitted. The Act provides that tenders shall be formulated and submitted in English, and supporting documents and printed literature furnished by the tenderer may be in another language if they are accompanied by an accurate translation of the relevant passages in English. Where there is a translation, the translation shall be used to interpret the tender.
The procurement entity shall fix the place for, and a specific date and time as the deadline for the submission of tenders and allow tenderers at least six weeks to prepare their tenders for international competitive tendering.
Where a procurement entity issues clarification or modification documents or if a meeting of tenderers is held, the procurement entity shall, prior to the expiry of the deadline for the submission of tenders, extend the deadline to give the suppliers and contractors reasonable time to take the clarification or modification, or the minutes of the meeting into account in their tenders.
The procurement entity may, prior to the expiry of the deadline for the submission of tenders, extend the deadline. The procurement entity shall, at least ten days before the expiry of the deadline, give notice of an extension of the deadline by fax, e-mail, or any other expedited written means of communication to each supplier or contractor to whom the procurement entity provided the tender documents or to any new prospective tenderers.
A tender shall be in writing, signed, and be submitted in a sealed envelope. A tender may alternatively be submitted in any other form specified in the tender documents that provides a record of the contents of the tender and a similar degree of authenticity, security, and confidentiality. The procurement entity shall provide the tenderer with a receipt showing the date and time when its tender was received.

Evaluation and comparison of tenders
This is the third stage in the tendering process, which entails opening of tenders, examination of tenders, and evaluation of tenders. Tenders shall be opened:

• at the time specified in the tender documents as the deadline for submission of tenders or at the deadline specified in any extension of the deadline; and
• at the place and in accordance with the procedures specified in the tender documents.
  The time for opening of the tenders shall be the same as the deadline for receipt of tenders or promptly after that deadline. A supplier or contractor who has submitted a tender or a representative of that supplier or contractor shall be permitted by the procurement entity to be present at the opening of tenders.
  The Tender Opening shall commence immediately after the close of the tenders (as stated in the tender document). The Procurement Unit will coordinate the Tender Opening, ensure smooth operation of the proceedings, take a register of attendance, prepare minutes of the opening, and advise the Chairman of the opening session on procedural issues if requested.
  A Tender Opening Panel shall comprise at least 3 persons, including a member of the Entity Tender Committee. They shall ensure that minutes of the tender opening proceedings are duly written. The Chairman of the Tender Opening Panel will control and direct the Tender Opening and not allow tenderer’s representatives to interfere with the work of the Panel. Any objections by a tenderer to the procedures or decisions of the Tender Opening should be made in writing to the Head of the Procurement Entity. For purposes of transparency, it is not permitted for a tender opening to be halted or postponed once the process begins.
  When the tender is opened, the name and address of each supplier or contractor whose tender is opened and the tender price shall be announced to those present at the opening of tenders and communicated on request to a supplier or contractor who has submitted a tender but is not present or represented at the opening of the tenders. The tender price shall be recorded immediately in the record of tendering proceedings.
  The procurement entity may ask a supplier or a contractor for clarification of its tender in writing in order to assist in the examination, evaluation, and comparison of tenders. No change in a matter of substance in the tender, including changes in price and changes aimed at making an unresponsive tender responsive, shall be sought, offered, or permitted. However, the procurement entity shall correct purely arithmetical errors that are discovered during the examination of tenders. The procurement entity shall give prompt notice of the correction to the supplier or contractor that submitted the tender.
  The purpose of the examination of tenders is to determine responsive tenders. The procurement entity shall regard a tender as responsive if it conforms to the requirements set out in the tender invitation documents. The procurement entity may, however, regard a tender as responsive if it contains minor deviations that do not materially alter or depart from the characteristics, terms, conditions, and other requirements set out in the invitation documents or if it contains errors or oversights that are capable of being corrected without touching on the substance of the tender.

Evaluation of tenders
The procurement entity shall evaluate and compare the tenders that have been accepted in order to ascertain the successful tender in accordance with the procedures and criteria set out in the invitation documents. No criterion shall be used that has not been set out in the invitation documents. The evaluation criteria of a tender shall include:

• the price
• the cost of operating, maintaining, and repairing goods and the functioning characteristics of the goods;
• time for delivery of goods
• the cost of construction and the functional characteristics of the construction;
• the completion of construction
• the cost of provision of service
• the environmental and other characteristics of the subject matter of the procurement;
• the term of payment for the procurement
• the guarantee in respect of the subject matter;
• any other matter the procurement entity considers as relevant to the procurement.
  The Tender Evaluation Panel plays a key role in the evaluation of the financial proposals. The Tender Evaluation Panel should examine the Financial Proposals to confirm substantial responsiveness to the conditions specified and that there are no important omissions or deviations from key requirements of the invitation document. The Tender Evaluation Panel may request clarifications from consultants concerning ambiguities or inconsistencies in the Financial Proposal. Such requests shall be in writing, and no change in the price or scope of the originally offered services may be sought or accepted, except for the correction of arithmetic errors. The responses from consultants shall also be in writing.
  A procurement entity may grant a margin of preference for the benefit of tenders for work by domestic contractors or for the benefit of tenders for domestically produced goods or for the benefit of domestic suppliers of services or any other preference authorised by the National Procurement Board or required by regulations or any other enactment.
  The margin of preference shall be calculated in accordance with the procurement regulations and reflected in the record of the procurement proceedings. The margin of preference shall be authorised by the Board and be subject to approval by the Board.

Selection and contract offer
A tender that has been ascertained to be the successful tender shall be accepted, and notice of acceptance of the tender shall be given within 30 days of the acceptance of the tender to the supplier or contractor submitting the tender.
Where the tender documents require the supplier or contractor whose tender has been accepted to sign a written procurement contract conforming to the tender, the procurement entity and the supplier or contractor shall sign the procurement contract within 30 days after the notice is dispatched to the supplier or contractor.
Where a written procurement contract is required to be signed, the procurement contract shall enter into force on the commencement date indicated on the contract. In all other cases, a procurement contract in accordance with the contract conditions of the accepted tender enters into force when the notice is dispatched to the supplier or contractor that submitted the tender, if it is dispatched while the tender is in force.
Between the time when the notice is dispatched to the supplier or contractor and the entry into force of the procurement contract, neither the procurement entity nor the supplier or contractor shall take any action that interferes with the performance of the procurement contract or with its entry into force.
The notice is dispatched when it is properly addressed or otherwise directed and transmitted to the supplier or contractor, or conveyed to an appropriate authority for transmission to the supplier or contractor, by a manner authorised by the Act.

Contract administration

• Payments to the supplier;
• Contractual disputes;
• Delays in performance;
• Claims for damages;
• Installation and commissioning of equipment;
• Release of performance securities and retentions;
• Contract reporting;
• Contract closure.