Decree No. 12 of 2023 for promulgating the regulation of government procurement

Decree No. 12 of 2023 for Promulgating the Regulation of Government Procurement

Council of Ministers of the Government of National Unity.

After perusal of the following:

• The Constitutional Declaration issued on August 3rd, 2011, and its amendments;
• The Libyan Political Agreement was signed on December 17th, 2015;
• The outcomes of the Libyan Dialogue Forum held on November 9, 2020;
• The State Financial Law and the Budget, Accounts and Warehouses Regulation and the amendments thereof;
• Law No. (1) of 2005 on Banks and amendments thereto;
• Law No. (9) of 2010 on the Encouragement of Investment and its Executive Regulations.
• Law No. (10) of 2010 on Customs and its Executive Regulations;
• Law No. (12) of 2010 on the promulgation of the Labor Relations Law;
• Law No. (23) of 2010 on Commercial Activity and the Regulations issued pursuant thereto, In accordance with the decision of the House of Representatives issued on 10 March 2021 on granting the confidence to the Government of National Unity.
• General People's Committee’s Decree No. 563 of 2007 promulgates the Administrative Contracts Regulation.
• General People's Committee’s Decree No. 563 of 2007 promulgates the Administrative Contracts Regulation.
•  Council of Ministers Resolution No. 492 of 2013 on Organizing the Tenders Committee Business and deciding specific provisions in this regard.
• The Secretary of Council of Ministers Affairs’ letter No. 223 dated 03/01/2023. As decided by the Council of Ministers at its first regular meeting of 2023.

Article 1

The provisions of the Government Procurement Regulation attached to this Decree shall apply to existing contracts – of any kind – at the time of its issuance, to the extent that they do not contravene the terms of such contracts.

Article 2

This decision shall be enforced from the date of its issuance, and the competent authorities shall apply its provisions.

Contents

The Government Procurement Regulation attached to the Council of Ministers of the Government of National Unity Resolution No. 12 of 2023.

Definition

• Objectives of the Government Procurement Regulation.
• Obligations of Government Entities when performing their work and securing their purchases.
• Establishment of Procurement Committees in the entities mentioned in Article 2.
• Advantages for the General Administrative Units.
• Direct Assignment.
• Additional Liabilities on Procurement Committees.
• Organizing Opening Offers.
• Bid Cancellation.
• Contracts Formulation and Documentation.
• Contractor's Obligations.
• Obligations of the Government Entity.

The Government Procurement Regulation attached to the Council of Ministers of the Government of National Unity’s Decree No. 12 of 2023.

Article 1

In applying the provisions of these regulations, the following terms and expressions shall have the meanings indicated aside from each of them:

• Contract: An agreement signed between a public administrative entity or unit and one of the implementation instruments.
• Administrative Body: The Council of Ministers and Ministries
• Administrative Unit: The Bodies, Institutions, Interests, Public Agencies, and the like.
• Contractor Supplier: The implementation instruments are registered and classified in accordance with the legislation in force.
• Works: All works to be performed under the contract.
• Regulation: Government Procurement Regulation.
• Platform: A unified online portal for government procurement.
• Emergency Situation: When there is a threat to public safety, security, or health.
• Urgent case: When short-term work or procurement is essential and necessary to ensure the safety and adequacy of workflow in the government entity.

Article 2

The provisions of this regulation shall apply to the procurement committees operating in public administrative entities and units and the like, with regard to government procurement contracts in Chapters 1 and 2 of the State's general budget.

Objectives of the Government Procurement Regulation

 Article 3

The purpose of the regulation is to:

1. Regulate procurement and business procedures, and prevent the exploitation of influence and the effect of personal interests therein so as to protect public money.
2. Achieve the best value for public money when contracting and executing business and procurement at fair, competitive prices.
3. Promote integrity and competition, achieve competitors' equality and equitable treatment, and the principle of equal opportunities.
4. Ensure transparency in all government business and procurement procedures.

The Government Entities' obligations when executing their work and securing their purchases 

Article 4

When carrying out their work and securing their purchases, government entities shall deal with authorized persons. Those who fulfill the conditions that qualify them for this deal shall have equal opportunities and be treated equally.

Article 5

Competitors must have clear, accurate, and specific information about the required works and purchases, and they should be able to obtain them at a specific time. The public tender shall be subject to publicity, transparency, and equal opportunity principles.

Article 6

Offering works, procurement, and contracting shall be within the limits of the actual needs of the government entity at fair prices that do not exceed those prevailing in the market.

Article 7

The government entity shall plan in advance for its business and purchases. It shall publish a plan commensurate with its allocations at the beginning of each fiscal year.

The establishment of procurement committees in the entities mentioned in Article 2 

Article 8

Purchasing committees shall be constituted in the entities mentioned in Article 2, consisting of five members, including the chairman. It shall be taken into consideration that their job grades are not less than ten; among them, there shall be a financial member, a legal member, and a technical member, taking into account that there is no subordination or supervisory relationship between the chairman of the committee and its members.

Article 9

The decision of a competent minister shall issue the decision on the formation of committees for ministries. Formation decisions with regard to public administrative units and the like are issued by their heads or managers, as the case may be. The committees shall abide by the provisions contained in the Council of Ministers Decree No. 492 of 2013 in a manner that does not contradict the provisions of this Regulation.

Advantages for General Administrative Units 

Article 10

Public administrative units with one or more branches in other regions where reform authorization is issued to cover their operating expenses may form subcommittees in the same legal form followed in the formation of the main committees.

Article 11

Government tenders and procurement procedures are offered through the platform unless this is not possible for technical or national security reasons.

Article 12

All works and purchases shall be submitted to a public tender to be announced on the platform.

Article 13

The government entity may contract by means of a limited tender in the following cases:

1. If only a limited number of suppliers or contractors are available for business and procurement.
2. If the business and purchases have an estimated value of no more than 350,000 three hundred and fifty thousand Dinars.
3. Urgent cases.

If the works and purchases are available with institutions, civil associations, or non-profit entities, provided that they undertake the implementation work themselves.

Direct Commissioning 

Article 14

The government agency may contract by direct assignment in the following cases:

1. If the works and purchases are available exclusively with a contractor or supplier, there is no alternative.
2. If the estimated cost of works and purchases is at most the amount of 100,000 one hundred thousand Dinars, and the volume of annual contracts is not exceeding 200,000 two hundred thousand Dinars.
3. Permission to contract is granted by direct assignment by the competent minister or whomever he authorizes or the head of the administrative unit, provided that the estimated value does not exceed 200,000 two hundred thousand Dinars.
4. Emergency cases

If the works and purchases are available to a non-profit entity, provided that it undertakes the implementation itself.

Article 15

• Offers are encrypted through the platform at the time specified for acceptance.
• Offers may be accepted in sealed envelopes if they cannot be submitted through the platform for technical reasons.
• The government entity shall announce the names of the persons who submitted their offers through the platform. If this is not possible for technical reasons, it shall announce by the means it deems appropriate for the announcement.
• The government entity may request to attach a sample of the required purchases.

Additional obligations on the procurement committees 

Article 16

The procurement committees, when exercising their function, shall ensure the following:

• Existence of permission to initiate procedures from the competent authority.
• Accurate and detailed conditions, specifications, and quantities of items are available.
• Studying market prices thoroughly and considering a ceiling on the estimated expected value of the contract.

Organizing Opening Offers 

Article 17

The offers shall be opened in the presence of all the committee members at the end of the period for receiving the offers. Minutes shall be prepared accordingly. In cases where a technical offer is required independent of the financial offer, the technical offer is opened without the financial offer.

Article 18

Proposals shall be examined in accordance with the criteria stipulated in the tender documents. The infringing offers are excluded. The Committee may negotiate with the best bidder in the following cases:

• If the best offer is higher than the prevailing prices in the market. The amount of the reduction is determined in accordance with market prices.
• If the value of the best offer rises over the estimated amounts approved for the contract. The amount of the reduction is determined in accordance with market prices.

Article 19

Regular periodic meetings shall be scheduled by the procurement committees, provided that their rapporteur notifies the members of the meetings’ date in a sufficient time. The meetings are subject to the following controls:

1. The meeting of the committee and the award shall only be valid if attended by the majority of its members, including the chairman.
2. The names of absentees and the reasons for their absence must be recorded in the meeting minutes.
3. The procurement committees may invite to attend their meetings whoever it deems to seek assistance from the technical aspects without having a counted vote in the deliberations.
4. Documents related to the committee shall be kept in its archive.
5. The committee issues awarding decisions by majority vote. If the number of votes are equal, the side of the chairman is from shall prevail. The opinion of the minority and of those who sought assistance must be recorded in the awarding minutes.
6. The chairman or members of the committee may not attend the meetings of the committee if he has an interest therein and if one of the tools of execution is owned by him or one of his relatives up to the fourth degree or one with whom he has a relationship by marriage.
7. The results of the procurement committees' work and the award's minutes are approved by the ministers or heads of public administrative units, as the case may be.

Bid C

Article 20

The tender shall be canceled in the following cases:

1. If the tender documents have fundamental errors that cannot be remedied.
2. If there are clear indications of fraud, corruption, or complicity
3. If the offers contravene the tender documents.
4. If it is required for the public interest.

Contract Formulation and Documentation 

Article 21

Contracts and their documents and appendices shall be drafted in Arabic, which shall be considered the approved language in the contracts’ interpretation and execution, and define the specifications, plans, and correspondence related thereto. The value of the contracts shall be in Libyan dinars.

Article 22

The duration of service contracts of continuous implementation should be at most one year. These contracts must include conditions related to the level of performance and continuous evaluation so that the government entity may terminate the contract if the performance is unsatisfactory.

Article 23

Upon notification of the award, the government entity and the successful bidder shall write the contract.

Article 24

The awardee must submit a final guarantee of 15% of the contract value within a period that does not exceed one week from the date of notification of the award. This guarantee must be retained until the contractor has fulfilled its obligations.

Article 25

If the contractor is late in executing the contract beyond the specified date, a fine shall be imposed which does not exceed 10% of the supply contract’s value and does not exceed 20% of the value of other contracts.

Obligations of the Government Entity 

Article 26

The government entity must terminate the contract in the following cases:

• If it appears that the contracting party has attempted, by himself or through others, directly or indirectly, to bribe an employee of the bodies subject to the provisions of these regulations, or has obtained the contract through fraud, circumvention, forgery, or manipulation, or has practiced any of that during the execution of the contract.
• If the contractor waives the contract without the government entity's written consent.
• If the contractor delays in commencing execution, slow down or breaches any contract terms.
• If it is required for the public interest.

Article 27

The government entity is obligated to use approved forms for contracts and documents required by the nature of the works and procurements.

Article 28

All implementing instruments shall attach their offers with the following documents:

1. A copy of the Memorandum & Articles of Association.
2. An updated extract from the commercial register.
3. A valid license to practice the activity.
4. Evidence of registration in the Importers Register or the Industrial Register.
5. A proof of tax and security contributions payment.

Article 29

The provisions of this regulation are considered an integral part of the Administrative Contracts Regulation issued pursuant to Resolution No. 563 of 2007.

Council of Ministers