Rajasthan Transparency in Public Procurement Act,2012 & RTPP Rules 2013-Avenue for professionals

1. Rajasthan Transparency in Public Procurement Act,2012 & RTPP Rules 2013-Avenue for professionals CA Vimal Chopra Ex-Chairman of CIRC of ICAI

2. Objective • An act to regulate public procurement • ensuring transparency, fair and equitable treatment of bidders, • promoting competition, enhancing efficiency and economy and • safeguarding integrity in the procurement process and • for matters connected therewith or incidental thereto.

3. Effective from • Act and Rules both effective from 26th January,2013.

4. Important terms • “bid” means a formal offer made in pursuance of an invitation by a procuring entity and includes any tender, proposal or quotation; • “bidder” means any person participating in a procurement process with a procuring entity; • “invitation to bid” means a document published by the procuring entity inviting bids relating to the subject matter of procurement and any amendment thereto and includes notice inviting tender and request for proposal; • “bidding documents” means documents issued by the procuring entity, including any amendments thereto, that set out the terms and conditions of the given procurement and includes the invitation to bid;

5. Important terms-Contd.. • “procurement process” means the process of procurement extending from the issue of invitation to pre-qualify or to register or to bid till the award of the procurement contract or cancellation of the procurement process, as the case may be; • “procurement contract” means a contract entered into between the procuring entity and a successful bidder concerning the subject matter of procurement; • “procurement” or “public procurement” means the acquisition by purchase, lease, licence or otherwise of works, goods or services, including award of Public Private Partnership projects, by a procuring entity whether directly or through an agency with which a contract for procurement services is entered into, but does not include any acquisition without consideration, and “procure” or “procured” shall be construed accordingly;

6. Important terms-Contd.. • “rate contract” means an agreement between a procuring entity and one or more bidders which specifies the terms and conditions including the price, for the supply of a subject matter of procurement required on a recurring basis; • “subject matter of procurement” means any item of procurement whether in the form of goods, services or works; • “services” means any subject matter of procurement other than goods or works and includes physical, maintenance, professional, intellectual, consultancy and advisory services or any service classified or declared as such by a procuring entity and does not include appointment of any person made by any procuring entity;

7. Important terms-Contd. • “procurement” or “public procurement” means the acquisition by purchase, lease, licence or otherwise of works, goods or services, including award of Public Private Partnership projects, by a procuring entity whether directly or through an agency with which a contract for procurement services is entered into, but does not include any acquisition without consideration, and “procure” or “procured” shall be construed accordingly; • “goods” includes all articles, material, commodities, electricity, livestock, furniture, fixtures, raw material, spares, instruments, software, machinery, equipment, industrial plant, vehicles, aircraft, ships, railway rolling stock and any other category of goods, whether in solid, liquid or gaseous form, purchased or otherwise acquired for the use of a procuring entity as well as services or works incidental to the supply of the goods if the value of services or works or both does not exceed that of the goods themselves;

8. Who are procuring entities(PE) • “procuring entity” means,- • (a) any deptt. of the SG or its attached or subordinate office; • (b) any SPSE owned or controlled by the SG; • (c) any body established or constituted by the Constitution whose expenditure is met from the Consolidated Fund of the State; • (d) any body or board or corporation or authority or society or trust or autonomous body (by whatever name called) established or constituted by an Act of the State Legislature or a body owned or controlled by the State Government; • (e) any other entity which the SG may, by notification, specify to be a PE for the purpose of this Act, being an entity that receives substantial financial assistance from the State Government in so far as the utilisation of such assistance towards procurement is concerned.

9. Why we should practice? • a PE shall have the responsibility and accountability to – • (a) ensure efficiency, economy and transparency; • (b) provide fair and equitable treatment to bidders; • (c) promote competition; and • (d) put in place mechanisms to prevent corrupt practices. • carry out its procurementin accordance with the provisions of this Act and the rules and guidelines made there under.

10. General Principles of Procurement • Specific provisions have been made w.r.t. • S.4Fundamental principle of procurement • S.5 Determination of need for procurement • Need determination, Scope, quantity, method of procurement, need for pre-qualification, limitations etc for subject matter • S.6Participation of bidders • Objective to broad base, mandatory procurement from certain class of suppliers, reasonable restrictions may be imposed. • S.7 Qualification of bidders- • Specified qualifications may be imposed e.g. professional, technical, financial, managerial etc. , statutory payment disciplines, financially competency, debarment, convicted of any criminal offence, conflict of interest etc

11. Procurement process • S.8 Obligations related to value of Procurement. • Obtain due authority, no piece meal order to bye pass or limit competition • S.9 Time frame of processing • Reasonable time frame for various stages_transparency, record reasons for variation. • S.10Documentary record of procurement proceedings & of communications • Documents relating to need(s.5),subject matter (s.12) method of procurement(S.29(4), particulars, pre bid conferences, bid price, summary of evaluations, appeals(s.38) etc. • S.11Code of integrity for procuring entity and bidders. • Adhere code of integrity of SG. All types of favours, omission, collusion, improper use of information, No inter se financial transaction, coercion, obstruction, conflict of interest etc, last 3 years.

12. Procurement process • S.12 Description of the subject matter of Procurement. • Set out in PQD,BRD and BD to meet essential needs, be objective, functional, generic and measurable etc. • S.13 Single part and two part bids.- • If needed invite two separate bids i.e. i) for techno commercial and ii) financial bid. Finalcial bid to be opened only of successful T & C bidders. • S.14 Criteria for evaluation. • May include price, conditions of use, experience etc other factors. Non price evaluations to be objective and quantifiable. Relative weight may be accorded, No NEW criteria or procedure to used by PE for evaluating bids.

13. Procurement process • S.15 Price Negotiations. • No price negotiations, exceptions S.31 or 35) • S.16 Terms and Conditions of Contracts. • All T & C in accordance with Act and Rules duly indicted in BD. Standard T & C may be prescribed by SG for adherence by PE. • S.17 State Public Procurement Portal • SG to set up and maintain a SPPP Portal. Each PE to publish its information on it, SPPP to provide access to all PQD, BRD, BD etc., list of bidders, PQ and RB, escluded bidders(s.25), decisions u/s 38-39,successful bids their price etc.

14. Procurement process • S.18Pre-Qualification of bidders. • A PE may engage in PQ process for identifying prospective bidders • S.19 Registration of bidders. • A panel of RB may be maintained for repeated requirements, invite offer prospective bidders, make suitable procedures, use RB registered in other PE’s. • S.20Content of Bidding Documents • Invitation to bid shall contain- brief of subject matter, goods, works, services with specifications, notice of limitation, manner, date and time for presentation of bids,other useful information.

15. Procurement process • S. 21 Time frame for submission of bids • Give reasonable time, specify in advance, adhere. • S. 22 Pre-bid clarifications. • Bidder may seek clarification from PE, reply in time frame, intimate to all bidders, publish on SPPP, hold pre bid conference etc. • S. 23Changes to bidding documents • Material changes to follow de novo procedure. • S. 23Submission, Opening, evaluation procedure of bids • Formation of Committee etc.

16. Procurement process • S. 25 Exclusion of bids. • Disqualified u/s 7, materially departs, false, conflict record reasons for • S. 26Cancellation of the procurement process. • Written recorded reasons, prior to acceptance of successful bid, keep bid un-opened, communicate, • Also cancel if • A) fails to sign any written contract. • B) fails to provide required security • C) bidder is convicted of any offence under the Act.

17. Award of Contract • S. 27 Award of contract. • If price is only criteria – lowest • If other are also -most advantageous • No financial criteria - most advantageous. Criteria / evaluation basis shall be same as was in bid. After due approval, communicate to successful bidder, publish on SPPP.

18. Methods of Procurement • Methods of Procurement (s. 28) • Open Competitive Bidding(29) • Limited Bidding (30) • Two stage Bidding (32) • Single Source Procurement(31) • Electronic Reverse Auction(33) • Request for Quotation (34) • Spot Purchases • Competitive Negotiations(35) • Rate Contract (36) • Swiss Challenge procurement. • On the principles of transparency and accountability SG May notify other conditions/procedures

19. Appeals(S.38) & (40) • within 10 days or as per PQD,BRD,BD give specific ground or grounds on which feels aggrieved. • On receipt, designate officer shall afford a reasonable opportunity and pass ORDER (say in 30 days), to be binding. • Bidder or PE within 15 days of the order file second appeal. • Second appeal to be decided within 30 days. • Appeal not to lie in section 40 list out cases e.g. confidentiality, as per PQBD etc requirements, cancellation of Procurement process etc.

20. Stay of Proceedings (39) • May be granted if likely to lead to miscarriage of justice.

21. Offences and Penalties • For taking gratification or valuable thing in respect of public procurement (41) • Interference with procurement process, causing unfair disadvantage, restrict fair competition, influences any PE, engages ex employee of PE, engages in bid rigging, collusive bidding or anticompetitive behaviour, intentionally breaches confidentiality etc. – up to 5 year imprisonment and fine up to 50 lacs or 10% of assessed value of procurement, subject to lower. • Similar penalties in case successful bidder backs out.

22. S.43 Vexations appeals or complains (43) • Whoever intentionally files any vexatious, frivolous, or malicious appeal of complaint under the Act • Intention to delay, defeat or cause loss File 25 lacs of 5% of Assessed value of procurement. • S. 44 Offences by companies :- Offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. Company includes LLp , Firm, Regd Society, Trust or AOP etc and like wise director includes partner of firm.

23. Debarment from bidding (46) • If he has been convicted of an offence under • Prevention of Corruption Act 1988 or IPC1860. • Not to participate for a period of three years. • Breach of code of integrity may also result in 3 yr D. • Give reasonable opportunity of being heard. • Previous sanction necessary for prosecution (47)

24. Miscellaneous • S.51 …deemed to be a public servant • S.52 Provisions of this act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. • S.53 arrears to be recovered as land revenue • S.54 Service of notice , documents and orders • S.55 Power of SG to make Rules. • S.56 Power to issue guidelines • S.57 Power to remove difficulties • S.58 Power to exempt • S. 59 Savings…

25. Dear Participants and Branch Thank you