ASSAM PUBLIC PROCUREMENT ACT, 2017
NOTIFICATION
The 11th April, 2017
No. LGL.243/2016/17.- The following Act of the Assam Legislative Assembly which received the assent of the Governor on 6th April, 2017 is hereby published for general information.
to establish legal foundations for procedures for procurement by public entities so as to ensure timely delivery of intended outcomes with efficiency, economy, integrity and accountability; transparency, fair and equitable treatment of bidders; public confidence regarding good governance in the process and for matters connected therewith or incidental thereto,
Preamble:- Whereas, it is expedient to establish legal foundations for procedures for procurement by public entities so as to ensure, -
(i) timely delivery of its intended outcomes with efficiency, economy, pro
1. Short title, extent and commencement.- (1) This Act may be called the Assam Public Procurement Act, 20] 7.
(2) It shall extend to the whole of the State of Assam.
(3) It shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint:
Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.
2. Definitions.- In this Act, unless the context otherwise requires,-
(a) "bid" means a formal offer made in pursuance of an invitation by a procuring entity and includes any tender, proposal (technical or financial) or quotation;
(b) "bidder" means any person, company, firm, agency, institution, etc. participating in a procurement process of a procuring entity for procurement of Goods, Works or Services;
(c) "bidder registration documents" means the documents issued by a procuring entity, including any amendments thereto, that set out the terms and conditions of registration proceedings and includes the invitation to register;
(d) "bidding documents" means documents for procurement of Goods, Works or Services 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; The
3. Application.- (1) This Act shall apply to all procuring entities referred to in sub-section (2).
(2) For the purposes of this Act, "procuring entity" means,-
(a) any department of the State Government or its attached or subordinate office;
(b) any State Public Sector Enterprise owned or controlled by the State Government;
(c) any entity established or constituted by the Constitution of India whose expenditure is met from the Consolidated Fund of the State;
(d) any entity or board or corporation or authority or society or trust or autonomous entity (by whatever name called) established or constituted by an Act of the State Legislature or an entity owned or controlled by the State Government;
(e) any other entity which the State Government may, by notification, specify to be a procuring entity for the purpose of this Act, being an
4. Fundamental principles of public procurement.- (1) In relation to a public procurement, the procuring 'entity shall have the responsibility and accountability to ensure
(a) effective and timely achievement of the planned outcomes of the procurement without excessive cost over-run;
(b) transparency (including consistency, objectivity, predictability, openness), fairness (including appeal rights), equality (including nondiscrimination) in relations with the bidders;
(c) professionalism, economy and efficiency, from official involved in process;
(d) compliance with the code of integrity in public procurement as laid down by the State Government under section 11 of this act by officer or employee of a procuring entity or a person participating in a procurement process.
(2) Subject to the provision of sub-section (3) of section 3, every procuring entity sh
5. Determination of need for procurement and description thereof.- (1) All procurement under this Act shall be initiated after first determining the need for the subject matter of procurement and after fulfilling the obligations under Section 8 below, duly taking into account the matters so prescribed in this regard in the rules made under this Act.
(2) While assessing the need under sub-section (1), the procuring entity shall take into account the estimated cost of the procurement and also decide on the following matters, namely:
(a) the scope or quantity of procurement, if determined;
(b) Ensure that the need is neither artificially created nor exaggerated, with the intention to channel benefits to certain individuals or organizations;
(c) ensure transparency and not restrict dialogue for determining solutions for the need only with certain individuals or organizations givin
6. Participation of bidders:- (1) The procuring entity shall not establish any requirement aimed at limiting participation of bidders in the procurement process that discriminates against or among bidders or against any category thereof, except when authorized or required to do so by this Act or the rules or guidelines made there under or by the provisions of any other law for the time being in force.
(2) In addition and without prejudice to any existing provisions of enactment of Procurement Preference Policy, Assam, 2015, the State Government may, by notification in this behalf, provide for mandatory procurement of any subject matter of procurement from any category of bidders, and purchase or price preference in procurement from any category of bidders, on the following grounds, namely:-
(a) the promotion of domestic industry;
(b) socio-economic policy of the Central Government or the State Gover
7. Qualifications of bidders:- (1) A procuring entity may determine and apply one or more of the requirements specified in sub-section (2) for a bidder to be qualified for participating in a procurement process, as distinct from and in addition to any eligibility conditions, if prescribed.
(2) Any bidder participating in the procurement process shall,-
(a) possess the necessary professional, technical, quality assurance, financial and managerial resources, certification and experience and competencies required, if any, by the bidding documents, prequalification documents or bidder registration documents, as the case may be, issued by the procuring entity;
(b) fulfill any other qualifications as may be prescribed.
(3) Subject to the right of bidders to protect their intellectual property or trade secrets the procuring entity may require a bidder to provide any such information
8. Obligations related to value of procurement:- (l) Initiating Procurement after due approvals,
(a) every procuring entity shall initiate the procurement process only after technical, administrative and budgetary approvals are accorded and after obtaining the approval of the authority which has the necessary financial powers to initiate such value and category of procurement as per the rules and guidelines made under this Act.
(b) however, procuring entity to save time, may initiate advance actions of procurement in anticipation of administrative and budgetary approvals, under certain circumstances and following procedures prescribed with the approval of an authority designated in this regard in the rules made under this Act, provided that the procurement process shall stop short of any financial or contractual commitment, even in such cases unless administrative and budgetary approvals have been obtained.
9 Time frame for processing:- (1) Subject to the rules as may be made by the State Government in this behalf, every procuring entity shall pre-determine a reasonable time frame for completion of various stages of the process of procurement and indicate the same in the pre-qualification documents, bidder registration documents or bidding documents, as the case may be.
(2) The procuring entity shall endeavor to adhere to the time frame indicated under sub-section (1) and in case of failure to do so extend such time frame for reasons to be recorded in writing.
10 Documentary record of procurement proceedings and of communications:- (1) The procuring entity shall maintain a record of its procurement proceedings, which shall include the following, namely:-
(a) Bid Documents of Bidders and certified copy of Contract Agreement with the successful bidders
(b) Description of the subject matter of the procurement under section 12;
(c) Statement of the reason for choice of a procurement method other than open competitive bidding under sub-section (4) of section 29
(d) Particulars of the participating bidders;
(e) Written requests for clarifications and any responses thereto including during pre-bid conferences;
(f) Bid prices and other financial terms;
(g) Summary of the evaluation of bids;
(h) Details of any appeal under section 38, and the related
11. Code of integrity for procuring entity and bidders:- (1) No officer or employee of a procuring entity or a person participating in a procurement process shall act in contravention of the code of integrity prescribed by the State Government.
(2) The code of integrity referred to sub-section (1) shall include provisions for,
(a) prohibiting,
(i) any offer, solicitation or acceptance of any bribe, reward or gift or any material benefit, either directly or indirectly, in exchange for an unfair advantage in the procurement process or to otherwise influence the procurement process;
(ii) any omission, including a misrepresentation that misleads or attempts to mislead so as to obtain a financial or other benefit or avoid an obligation;
(iii) any collusion, bid rigging or anti-competitive behavior to impair the transparency, fairness and progress of the pr
12. Description of the subject matter of procurement:- (1) The description of the subject matter of procurement shall be set out in the pre-qualification documents, bidder registration documents and the bidding documents and shall,-
(a) be such as to meet the essential needs of the procuring entity;
(b) to the extent practicable-
(i) be objective, functional, generic and measurable;
(ii) set out the relevant technical, quality and performance characteristics;
(iii) not indicate a requirement for a particular trade mark, trade name or brand and incase it is essential to mention, the word" or equivalent" shall be invariably used after the trade mark, trade name or brand;
(c) be drawn up in accordance with guidelines as may be prescribed.
(2) Where applicable, the technical specifications shall, to the extent
13. Single envelop and two envelop bids:- (1) State Government may lay down in rules and guidelines hereunder. conditions and detailed procedures under which, a procuring entity may choose to,-
(a) call for bids in which the technical, quality and performance aspects, commercial terms and conditions and the financial aspects including the price are contained in a single envelope; or
(b) if it is of the opinion that it is essential to evaluate the technical aspects of a bid before considering its financial aspect, call for bids in two envelopes, namely:-
(i) the techno-commercial bid containing the technical, quality and performance aspects, commercial terms and conditions and all other details and documents sought in the tender, except the price and relevant financial details: and
(ii) the financial bid containing financial aspects including the price.
14. Criteria for evaluation:- (1) Save as otherwise provided in this Act or the made or guidelines made there under or in any other law for the time being in force, the evaluation criteria shall relate to the subject matter of procurement and may include,
(a) the price:
(b) the cost of operating, maintaining and repairing goods or works, the time for delivery of goods, completion of works or provision of services, the characteristics of the subject matter of procurement, such as the functional characteristics of goods or works and the environmental characteristics of the subject matter, the terms of payment and of guarantees in respect of the subject matter' of procurement; and
(c) where relevant. the experience, reliability and professional and technical competence of the bidder and of the personnel to be involved in providing the subject matter of procurement
(2) Where consi
15. Price negotiations:- Save as otherwise provided in section 31 or section 35 or in such circumstances and subject to such conditions as may be prescribed, no price negotiation shall be held by a procuring entity with a bidder with respect to a bid presented by him.
16. Terms and conditions of contracts:- (1) The terms and conditions of the procurement contracts entered into shall be in accordance with the provisions of this Act, the applicable rules and the conditions indicated in the bidding documents.
(2) The State Government may prescribe standard terms and conditions of contract which shall be incorporated in the procurement contracts entered into by procuring entities as applicable.
17. State Public Procurement Portal:- (1) The State Government shall set up and maintain a State Public Procurement Portal accessible to the public for posting matters relating to public procurement.
(2) Each procuring entity shall cause the procurement related information to be published as required under this Act or the rules and guidelines made there under on the Portal referred to in sub-section (1).
(3) Without prejudice to the generality of sub-section (2), the State Public Procurement Portal shall provide access to the following information, for such period of time as may be prescribed, in relation to procurement governed by the provisions of this Act, namely:-
(a) pre-qualification documents, bidder registration documents, bidding documents and any amendments, clarifications including those pursuant to pre-bid conference, and corrigenda thereto;
(b) list of bidders tha
18. Pre-qualification of bidders:- (1) In appropriate technically complex; strategic and high value procurements as prescribed in rules and guidelines made hereunder a procuring entity may engage in a pre-qualification process, with a view to identifying, prior to inviting bids, the bidders that are qualified for any specified period of time.
(2) For the purpose of sub section (1), a procuring entity may invite offers from prospective bidders by giving wide publicity to the invitation to pre-qualify and shall publish the particulars of the bidders that are qualified on the State Public Procurement Portal.
(3) Where a procuring entity has undertaken a pre-qualification process in respect of any procurement, only such pre-qualified bidders shall be entitled to continue in the procurement proceedings.
(4) The procuring entity shall decide who is pre-qualified in accordance with section 7 and the criter
19. Registration of bidders:- (1) With a view to establishing reliable sources for a subject matter of procurement or a class of procurement, which may be commonly required across procuring entities or repeatedly required by a procuring entity, a procuring entity may maintain a panel of registered bidders.
(2) For the purpose of sub-section (1), a procuring entity may invite offers from prospective bidders by giving wide publicity to the invitation to register and such registration shall be done in accordance with section 7, this section and the criteria set out in the bidder registration documents.
(3) The procuring entities shall update the list of registered bidders by allowing potential bidders to apply for registration on a continuous basis.
(4) The State Government may prescribe the procedure and conditions for registration of bidders and the period for which such registration shall be valid.
20. Contents of bidding documents:- (1) Subject to the rules as may be made in this behalf, the invitation to bid shall contain-
(a) a brief description of subject matter of procurement;
(b) in case of procurement of,
(i) goods, its specifications including the nature, quantity, time and place of delivery;
(ii) works, the nature, completion time and location of the works;
(iii) services, the nature of the services, the time and location for providing service.
(c) any notice of limitation to participation of bidders in terms of section 6;
(d) the manner, date and time for submission of bids;
(e) any other information which is considered by the procuring entity relevant for the purpose.
(2) The detailed bidding document shall contain the particulars included in t
21. Time frame for submission of bids:- (1) While fixing the last date by which bids are to be submitted by the bidders, the procuring entity shall take into account
(a) the need of the bidders for having a reasonable time to prepare and submit their bids; and
(b) the time frame envisaged for procurement.
(2) Subject to the provisions of section 23, the maximum time as may be allowed for submission of bids shall be the same for all bidders.
22. Pre-bid clarifications:- (1) Any bidder may, in writing, seek clarifications from the procuring entity in respect of the bidding documents.
(2) The period within which the bidders may seek clarifications under subsection (1) and the period within which the procuring entity shall respond to such requests for clarifications shall be specified in the bidding documents.
(3) All requests for clarifications and responses thereto shall be intimated to all bidders and where applicable, shall be published on the State Public Procurement Portal.
(4) A procuring entity may hold a pre-bid conference to clarify doubts of potential bidders in respect of a particular procurement and the records of such conference shall be intimated to all bidders and where applicable, shall be published on the State Public Procurement Portal.
23. Changes to bidding documents:- (1) In case any modification is made to the bidding documents or any clarification is issued which materially affects the terms contained in the bidding documents, the procuring entity shall publish such modification or clarification in the same manner as the publication of the initial bidding documents.
(2) In case a clarification or modification is issued to the bidding documents, the procuring entity may, prior to the last date for submission of bids, extend such time limit in order to allow the bidders sufficient time to take into account the clarification or modification, as the case may be, while submitting their bids.
(3) Any bidder who has submitted his bid in response to the original invitation shall have the opportunity to modify or re- submit it, as the case may be, within the period of time originally allotted or such extended time as may be allowed for submission of bids, wh
24. The procedure relating to submission, opening and evaluation of bids:- Subject to the terms and conditions as may be laid down in the bidding documents, submission of bids, opening and evaluation of bids, including constitution of committees for those purposes shall be in accordance with the rules made under this act as may be prescribed in the guidelines prepared there under.
25. Exclusion of bids:- (1) A procuring entity shall exclude a bid if,-
(a) the bidder is not qualified in terms of section 7;
(b) the bid materially departs from the requirements specified in the bidding documents or it contains false information;
(c) the bidder submitting the bid, his agent or anyone acting on his behalf, gave or agreed to give, to any officer or employee of the procuring entity or other governmental authority a gratification in any form, or any other thing of value, so as to unduly influence the procurement process;
(d) a bidder, in the opinion of the procuring entity, has a conflict of interest materially affecting fair competition,
(2) A bid shall be excluded as soon as the cause for its exclusion is discovered,
(3) Every decision of a procuring entity to exclude a bid shall be for reasons to be recorded in wr
26. Cancellation of the procurement process:- (1) A procuring entity may, for reasons to be recorded in writing, cancel the process of procurement initiated by it, -
(a) at any time prior to the acceptance of the successful bid; or
(b) after the successful bid is accepted in accordance with subsections (4) and (5).
(2) The procuring entity shall not open any bids or proposals after taking a decision to cancel the procurement and shall return such unopened bids or proposals.
(3) The decision of the procuring entity to cancel the procurement and reasons for such decision shall be immediately communicated to all bidders that participated in the procurement process.
(4) If the bidder whose bid has been accepted as successful fails to sign any written procurement contract as required, or fails to provide any required security for the performance of the contra
27. Award of contract:- (1) Subject to the provisions of section 25 and sub-section (2) of section 6, the procuring entity shall consider a bid as successful,-
(a) where price is the only award criterion, the bid with the lowest bid price;
(b) where there are price and other award criteria, the most advantageous bid ascertained on the basis of the criteria and procedures for evaluating bids as specified in the bidding documents;
(c) where there are no financial criteria, the most advantageous bid ascertained on the basis of selected non-financial criteria or other parameters for evaluating bids as specified in the bidding documents.
(2) A bid shall be treated as successful in terms of sub-section (1), only after the competent authority has approved the procurement in terms of that bid.
(3) As soon as the procuring entity, with the approval of the compete
28. Methods of procurement:- (1) Subject to the provisions of this Act and the rules made there under, a procuring entity may procure a subject matter of procurement by means of any of the following methods, namely:-
(a) Open Competitive Bidding; or
(b) Limited Bidding; or
(c) Two stage Bidding; or
(d) Single Source Procurement; or
(e) Electronic Reverse Auction; or
(f) Request for Quotations; or
(g) Spot Purchase; or
(h) Competitive negotiations; or
(i) Rate Contract or Government E- Market (GeM)
(j) Framework agreement; or
(k) e-commerce; or
(l) community procurement for community driven schemes; or
(m) Swiss Challenge; or
(n) any other method of pr
29 Open competitive bidding:- (1) Every procuring entity shall prefer the open competitive bidding as the most preferred method of procurement to be followed.
(2) Open competitive bidding may also be followed in case of two stage bidding in terms of section 32, electronic reverse auction in terms of section 33 and rate contract in terms of section 36.
(3) The procuring entity may follow the pre-qualification procedure specified in section 18 and invite bids from pre-qualified bidders only.
(4) Where the procuring entity chooses a method of procurement other than the open competitive bidding, it shall record the reasons and circumstances thereof.
(5) In case of an open competitive bidding, the procuring entity shall invite bids by publishing an invitation to bid on the State Public Procurement Portal and in at least one such other manner as may be prescribed.
30 Limited bidding:- (1) A procuring entity may choose to procure the subject matter of procurement by the method of limited bidding, if,
(a) the subject matter of procurement can be supplied only by a limited number of bidders; or
(b) the time and cost involved to examine and evaluate a large number of bids may not be commensurate with the value of the subject matter of procurement; or
(c) owing to an urgency brought about by unforeseen events, the procuring entity is of the opinion that the subject matter of procurement cannot be usefully obtained by adopting the method of open competitive bidding; or
(d) procurement from a category of prospective bidders is necessary in terms of sub-section (2) of section 6.
(2) Subject to the rules as may be made in this behalf, the procedure for limited bidding shall include the following, namely:-
31. Single source procurement:- (1) A procuring entity may choose to procure the subject matter of procurement by the method of single source procurement, if,-
(a) the subject matter of procurement is available only from a particular prospective bidder, or a particular prospective bidder has exclusive rights in respect of the subject matter of procurement, such that no reasonable alternative or substitute source exists, and the use of any other procurement method would therefore not be possible; or
(b) owing to a sudden unforeseen event, there is an extremely urgent need for the subjeCt matter of procurement, and engaging in any other method of procurement would be impractical; or
(c) the procuring entity, having procured goods, equipment, technology or services from a supplier, determines that additional supplies or services must be procured from that supplier for reasons of standardization
32. Two stage bidding:- (1) A procuring entity may choose to procure the subject matter of procurement by the method of two stage bidding, if,
(a) it is not feasible for the procuring entity to formulate detailed specifications or identify specific characteristics for the subject matter of procurement, without receiving inputs regarding its technical aspects from bidders; or
(b) the character of the subject matter of procurement is subject to such rapid technological advances and market fluctuations to make open competitive bidding unfeasible; or
(c) the procuring entity seeks to enter into a contract for the purpose of research, experiment, study or development, except where the contract includes the production of items in quantities sufficient to establish their commercial viability or to recover research and development costs; or
(d) the bidder is expected to carry o
33. Electronic reverse auction:- (1) A procuring entity may choose to procure a subject matter of procurement by the method of electronic reverse auction, if.
(a) it is feasible for the procuring entity to formulate a detailed description of the subject matter of the procurement;
(b) there is a competitive market of bidders anticipated to be qualified to participate in the electronic reverse auction, such that effective competition is ensured; and
(c) the criteria to be used by the procuring entity in determining the successful bid are quantifiable and can be expressed in monetary terms.
(2) Subject to the rules as may be made in this behalf, the procedure for electronic reverse auction shall include the following, namely:
(a) the procuring entity shall invite bids to the electronic reverse auction by causing an invitation to be published in accor
34. Request for quotations and spot purchase:- (1) A procuring entity may choose to procure a subject matter of procurement of value below a monetary value as may be prescribed, in the rules made under this act and Notified by the State Government by the method of request for quotations in the following situations, namely:-
(a) procurement of readily available commercial-off- the-shelf goods that are not specially produced to the particular description of the procuring entity and for which there is an established market; or
(b) physical services that are not specially provided to the particular description of the procuring entity and are readily available in the market; or
(c) procurement of any goods or works or services which are urgently required for maintenance or emergency repairs.
(2) Subject to the rules as may be made in this behalf, the procedure for request fo
35A. Competitive negotiations:- (1) A procuring entity may choose to procure a subject matter of procurement by the method of competitive negotiations, if,-
(a) owing to an urgency brought about by unforeseen events, the procuring entity is of the opinion that the subject matter of procurement cannot be usefully obtained by adopting the method of open competitive bidding or any other method; or
(b) the subject matter of procurement involves livestock, cotton, oil seeds or such other agricultural produces whose prices fluctuate frequently and in the opinion of the procuring entity the subject matter of procurement cannot be usefully obtained by adopting the method of open competitive bidding or any other method.
(2) Subject to the rules as may be made in this behalf, the procedure for competitive negotiation shall include the following, namely:-
(a) purchase of the subje
35 B. Swiss Challenge:- (1) A procuring entity may choose to procure the subject matter of procurement by the method of Swiss Challenge, under such conditions, as may be prescribed by the Government.
(2) The procedure for Swiss Challenge shall be such as may be prescribed by the Government.
36. Rate contract and Government E-Market (GeM):- (1) Rate Contract:
(a) A procuring entity may choose to engage in a rate contract procedure in accordance with the rules as may be made in this behalf, under this Act where it determines that, -
(i) the need for the subject matter of procurement is expected to arise on an indefinite or repeated basis during a given period of time;
(ii) by virtue of the nature of the subject matter of procurement, the need for it may arise during a given period of time.
(b) A procuring entity may award a rate contract on the basis of open competitive bidding or by means of other procurement methods in accordance with the provisions of this Act.
(c) Subject to the rules as may be made in this behalf, the procedure for rate contract shall include the following, namely:-
(i) the manner in whic
37. Additional conditions for use of methods of procurement:- Notwithstanding anything contained in sections 30 to 36 (both inclusive), the State Government may through notification, add the conditions for the use of any of the methods of procurement mentioned in clauses (b) to (i) of sub-section (1) of section 28, in a manner that is consistent with the principles of transparency and accountability.
38. Appeals:- (1) Subject to section 40, if any bidder or prospective bidder is aggrieved that any decision, action or omission of the procuring entity is in contravention to the provisions of this Act or the rules or guidelines issued there under, he may file an appeal to such officer of the procuring entity, as may be designated by it for the purpose, within a period of ten days or such other period as may be specified in the pre-qualification documents, bidder registration documents or bidding documents, as the case may be, from the date of such decision or action, omission, as the case may be, clearly giving the specific ground or grounds on which he feels aggrieved:
Provided that after the declaration of a bidder as successful in terms of section 27, the appeal may be filed only by a bidder who has participated in procurement proceedings:
Provided further, that in case a procuring entity evaluates the techni
39. Stay of procurement proceedings:- While hearing of an appeal under section 38, the officer or authority hearing the appeal may, on an application made in this behalf and after affording a reasonable opportunity of hearing to the parties concerned, stay the procurement proceedings pending disposal of the appeal, if he, or it, is satisfied that failure to do so is likely to lead to miscarriage of justice.
40. Appeal not to lie in certain cases:- No appeal under section 38 shall lie against any decision of the procuring entity relating to the following matters, namely:-
(a) determination of need of procurement in terms of section 5;
(b) provisions limiting participation of bidders in the bid process in terms of the provisions of section 6;
(c) the decision of whether or not to enter into negotiations in terms of section 15;
(d) cancellation of a procurement process 10 terms of section 26;
(e) applicability of the provisions of confidentiality under section 49.
41. Punishment for taking gratification or valuable thing in respect of public procurement:- Whoever, being an officer or employee of the procuring entity acting in connection with any procurement process, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification other than legal remuneration or any valuable thing without consideration or for a consideration which he knows to be inadequate, in connection with such public procurement, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
42. Interference with procurement process:- (1) Whoever
(a) interferes with or int1uences any procurement process with the intention of securing any wrongful gain or undue advantage for any prospective bidder or bidder; or
(b) interferes with the procurement process with the intention of causing any unfair disadvantage for any prospective bidder or bidder; or
(c) engages in any action or lobbying, directly or indirectly, with the objective of unduly restricting fair competition; or
(d) intentionally influences any procuring entity or any officer or employee thereof or willfully or fraudulently makes any assertion or representation that would restrict or constrain fair competition in any procurement process; or
(e) engages a former officer or employee of a procuring entity as an employee, director, consultant, adviser or otherwise, within a period
43. Vexatious appeals or complaints:- Whoever intentionally files any vexatious, frivolous or malicious appeal or complaint under this Act, with the intention of delaying or defeating any procurement or causing loss to any procuring entity or any other bidder, shall be punished with tine which may extend to twenty lakh rupees or five per cent of the value of procurement, whichever is less.
44. Offences by companies:-(1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of having committed the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable for any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any
45. Abetment of certain offences:- Whoever abets an offence punishable under this Act, whether or not that offence is committed in consequence of that abetment, shall be punished with the punishment provided for the offence.
46. Debarment from bidding:- (1) A bidder shall be debarred by the State Government if he has been convicted of an offence
(a) under the Prevention of Corruption Act, 1988 (Central Act No. 49 of 1988) ; or
(b) under the Indian Penal Code, 1860 (Central Act No. 45 of 1860) or any other law for the time being in force. for causing any loss of life or property or causing a threat to public health as part of execution of a public procurement contract.
(2) A bidder debarred under sub-section (1) shall not be eligible to participate in a procurement process of any procuring entity for a period not exceeding three years commencing from the date on which he was debarred,
(3) If a procuring entity finds that a bidder has breached the code of integrity prescribed in terms of section 11, it may debar the bidder for a period not exceeding three years.
<47. Previous sanction necessary for prosecution:- No court shall take cognizance of an offence punishable under this Act. alleged to have been committed by a public servant during the course of his employment, except with the previous sanction,-
(a) in case of a person who is employed in connection with the affairs of the State and is not removable from his office save by or with the sanction of the State Government, of that Government.
(b) in the case of any other person, of the authority competent to remove him from his office.
48. Requirement of professional standards, training and certification:- The State Government may prescribe professional standards to be achieved by officials dealing with procurement matters under this Act and specify suitable training and certification requirements for the same.
49. Confidentiality:- (1) Notwithstanding anything contained in this Act but subject to the provisions of any other law for the time being in force providing for disclosure of information, a procuring entity shall not disclose any information if such disclosure, in its opinion, is likely to
(a) impede enforcement of any law;
(b) affect the security or strategic interests of India;
(c) affect the intellectual property rights or legitimate commercial interests of bidders;
(d) affect the legitimate commercial interests of the procuring entity in situations that may include when the procurement relates to a project in which the procuring entity is to make a competitive bid, or the intellectual property rights of the procuring entity.
(2) Except as otherwise provided in this Act. a procuring entity shall treat all communications with bidders related to
50. State Procurement Facilitation Cell:- (1) The State Government shall establish a State Procurement Facilitation Cell which shall be headed by an officer not below the rank of a Commissioner.
(2) The State Procurement facilitation Cell shall discharge the following functions. namely:
(a) to maintain and update the State Public Procurement Portal set up under section 17:
(b) to arrange for training and cct1ification specified in terms of section 48;
(c) to recommend to the State Government measures for effective implementation of the provisions of this Act;
(d) to provide guidance, consistent with the provisions of this Act and the rules and guidelines made there under, to the procuring entities with respect to the matter relating to public procurement;
(e) to study different methods of public procurement and prepare and r
51. Protection of action taken in good faith:- (l) Every officer or employee of a procuring entity or any member of a committee constituted under this Act, acting under or in pursuance of the provisions of this Act or rules, guidelines, orders or notifications made there under shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code, 1860 (Central Act No. 45 of 1860)
(2) No suit, prosecution or other legal proceedings shall lie against any officer or employee or any other person acting in the discharge of any function under this Act for any loss or damage caused or likely to be caused by any act which is done or intended to be done in good faith and in pursuance of the provisions of this Act.
(3) For the purposes of this section, 'good faith' shall have the same meaning as is assigned to it under section 52 of the Indian Penal Code, 1860 (Central Act No. 45 of l860)
52. Application of other laws:- The 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.
53. Recovery of sums payable under the Act:- Any sum payable by any person under this Act shall be recoverable as arrears of land revenue.
54. Service of notice, documents and orders:- (1) For the purposes of this Act a notice, document or order shall be deemed to be served,
(a) on any individual by,-
(i) delivering it to the person personally: or
(ii) leaving it at, or sending it by post to, the address of the place of residence or business of the person last known;
(b) on a body corporate by leaving it at, or sending it by post to, the registered office of the body corporate.
(2) For the purposes of this Act, when the procedure laid down by sub-section (1) is followed, service shall be deemed to be effected by properly addressing, preparing and posting the document. notice or order, as the case may be.
55. Power of State Government to make rules:- (1) The State Government may, by notification, make rules for carrying out the provisions of this Act and different sets of rules may be made for different classes or categories of procurements or procuring entities.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
(i) procurements covered under sub-section (4) of section 3;
(ii) matters to be decided while determining need for procurement under section 5;
(iii) circumstances in which participation of bidders may be limited under section 6;
(iv) identification and treatment of conflict of interest situations under section 7;
(v) additional qualifications to be fulfilled by bidders under clause (f) of sub-section (1) of
56. Power to issue guidelines:- (1) Subject to the provisions of this Act and the rules made there under. a procuring entity may issue guidelines giving details of procedure or general forms or standard specifications and manuals required for giving effect to the provisions of this Act and the rules made there under.
(2) All guidelines issued by a procuring entity under this section shall be laid, as soon as may be after they are so made, before the House of the State Legislature, while it is in session, for a period of not less than fourteen days, which may comprise in one session or in two successive sessions and, if before the expiry of the session in which they are so laid or of the session immediately following, the House of the State Legislature makes any modification in any of such guidelines or resolves that any such guideline should not be made, such guideline shall thereafter have effect only in such modified fom1 or be of no e
57. Power to remove difficulties:- (1) If any difficulty arises in giving effect to the provisions of this Act, the State Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act, as may appear to it to be necessary for removing the difficulty:
Provided that no order shall be made under this section after the expiry of a period of two years from the commencement of this Act.
(2) Every order made w1der this section shall be laid, as soon as may be after it is made, before the House of the State Legislature.
58 Power to exempt:- (1) If the State Government is satisfied that it is necessary in public interest so to do, it may, by order published in the Official Gazette and for reasons to be recorded in such order, exempt any procurement or a class or category of procurements or a class or category of procuring entities from the application of all or any of the provisions of this Act.
(2) Every order made under sub-section (1) shall, as soon as may be after it is made, be laid before the House of the State Legislature.
59 Savings:- All rules, regulations, orders, notifications, departmental codes, manuals. bye-laws, official memoranda or circulars relating to procurement of goods, services or works provided for in this Act, which arc in force on the date of commencement of this Act, shall continue to be in force to the extent they arc consistent with the provisions of this Act, until they are repealed or superseded by any rule, guideline, notification or order, as the case may be, made or issued under this Act.
Elevate your legal practice with advanced AI-driven research and drafting solutions. Experience unmatched efficiency, precision, and security, tailored exclusively for legal professionals.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
AI Assistant
