Ministerial Resolution No. 24 of 2016 on the Implementation of the Tenders Regulation of the Public Authority for Housing Welfare

Ministerial Resolution No. 24 of 2016
on the Implementation of the Tenders Regulation of the Public Authority for Housing Welfare

Article One

The Tenders Regulation attached to this Resolution shall be applied, and every provision contrary to its provisions is hereby repealed.

Article Two

The competent authorities shall implement this Resolution, which shall come into force from the date of its issuance and shall be published in the Official Gazette.

Tenders Regulation

Preliminary Provisions

Article 1

In applying the provisions of this Regulation, the following words and terms shall have the meaning assigned to each of them:
1) The Law: Laws Nos. (47) of 1993 and (27) of 1995 referred to above.
2) The Authority: the Public Authority for Housing Welfare.
3) The Board of Directors: the Board of Directors of the Authority.
4) The Minister: the Minister of State for Housing Affairs.
5) The Director General: the Director General of the Authority.
6) The Regulation: the Tenders Regulation.
7) The Committee: the Tenders Committee of the Authority.
8) The Envelope Opening Committee: the Committee for Opening Bid Envelopes.
9) The Documents: the tender or practice documents stamped with the seal of the Authority and delivered by the Authority to the bidder, which the bidder shall return after completing their particulars and stamping them.
10) The Tenderer or Practice Participant: whoever submits a bid to the Committee in the tender or practice invited.
11) The Winner: the person to whom the bid is awarded.
12) Public Tender: the set of procedures announced in accordance with the conditions set out in this Regulation for the purpose of reaching the tenderer who submits the best bid.
13) Limited Tender: a tender in which participation is restricted to certain persons or companies by reason of their technical and administrative competence.
14) Direct Order: a contract concluded by the Authority with an undertaker or contractor in accordance with the provisions of this Regulation.
15) Practice: contracting by practice takes place according to the nature of the goods or works or due to circumstances of urgency; the practice is conducted among the practice participants by each of them submitting one or more offers, by sealed envelope or open practice, or by any means the Authority deems appropriate.
16) The Official Currency: the Kuwaiti Dinar.

Part One – Tenders and Practices

Chapter One – Formation of the Tenders Committee

Article 2

The Board of Directors shall form a committee called the “Tenders Committee of the Authority”, which shall have competence over the following:
1. Approving the controls, criteria and bases for the qualification of contractors to participate in the tenders and practices of the Authority.
2. Approving the invitation of the tender or practice and approving the tenderers and practice participants intended to participate.
3. Examining the reports submitted to it by the Administration on the accepted bids, deciding on their award in accordance with the procedures set out in this Regulation, and informing the Board of Directors thereof.
4. Repealed.
5. Carrying out any work assigned to it by the Board of Directors.

* Clause (4) was repealed by Ministerial Resolution No. 14 of 2019 (Kuwait Al-Youm, Issue No. 1441, 21 April 2019).

Article 3

The Committee shall consist of at least five members, including the Director General, and its members may include a maximum of two members from outside the Board; the members of the Committee shall elect from among themselves a Chairman and a Vice-Chairman.
For the meeting of the Committee to be valid, the absolute majority of its members shall be present, including the Chairman or his Vice-Chairman.
The recommendations and decisions of the Committee shall be reasoned and shall be issued by the absolute majority of the members present, unless a special majority is required by the Regulation; in the event of a tie, the side on which the Chairman voted shall prevail.

Chapter Two – Methods of Contracting

Article 4

The Authority may not purchase or import goods or engage contractors to carry out works or services except by a public or limited tender or practice, whether local, announced inside Kuwait, or international, announced inside and outside Kuwait.

Article 5

By way of exception from the provisions of Articles (2) and (4), the Authority may, upon the approval of the Director General, contract without referring to the Committee in the following two cases:
1. The purchase or import of goods or materials, or the assignment of works or services, not exceeding twenty thousand Dinars, by direct order, provided that a single transaction is not split, and that contracting for the same goods, materials or works does not take place more than once every three months.
2. Concluding all types of contracts not exceeding ten million Dinars, in accordance with the provisions of the Direct Contracting Regulation referred to above.

Chapter Three – Tenderers and Practice Participants

Article 6

Whoever submits a bid in a public or limited tender or a practice, or in the case of direct contracting, shall be Kuwaiti – an individual or a company – entered in the Commercial Register, and registered in the register of suppliers or contractors, or as the nature of the contract requires.
The bidder may be a foreigner, in which case the provisions of Clause (1) of Article (23) and of Article (24) of the Commercial Code referred to above shall not apply to him.
The invitation may be restricted to national companies in the case of standard works or works for which sufficient specialisations are available in the local market, or the invitation may be restricted to foreign companies when it is necessary to carry out works requiring technical specialisations that are not available locally in sufficient number and in a manner that makes proper competition difficult.

* Replaced by Ministerial Resolution No. 41 of 2017 (Kuwait Al-Youm, Issue No. 1363, 22 October 2017).

Article 7

The tenderer or practice participant may not be a member of the Board of Directors of the Authority or an employee thereof, or a member of one of the committees of the Authority; for the purposes of this Article, the expression “tenderer or practice participant” includes the partner, the agent, the member of the board of directors and the employee of the entity submitting the bid, as well as the consultancy office that studied the works invited or prepared the tender documents, and the individuals working for it.

Part Two – Tender or Practice Procedures and Decision Thereon

Chapter One – Procedures for Inviting the Tender

Article 8

Before inviting tenders or practices for the supply of goods or the contracting of works, the Administration shall prepare the bid form, all documents required for the invitation, the conditions, requirements, technical specifications, any other documents and the instructions required for the tenderers or practice participants, and the procedures to be followed regarding the subject of the contract in terms of the execution of the contract and the penalties that may be imposed in the event of breach of the provisions of the contract or delay in its execution.
Any requirements or obligations that the winning tenderer shall provide shall also be disclosed in the tender or practice documents, in accordance with the requirements of each project separately.

Article 9

Tenders or practices for goods for which samples are required to be submitted shall provide for the specifications, weight, measurement or size of the samples to be submitted with the bids, so that they are sufficient for the purpose should they need to be examined or analysed, and a label of the bidder shall be affixed to them in a manner that cannot easily be removed.

Article 10

The tender or practice documents shall be prepared before the announcement is published, to be delivered to those wishing to participate, stamped with the seal of the Authority, against the cash consideration determined by the Authority.

Article 11

The Authority shall announce the tender or practice in the Official Gazette, and, in addition, the announcement may be made in local or foreign newspapers, by electronic means, or by the special means or those available to the Authority; the related announcements shall be posted on the board designated for announcements at the premises of the Authority at the appropriate time.
The announcement shall specify the goods or work to be supplied or executed, the cash consideration for the documents, a period for submitting bids not exceeding ninety days from the date of the first announcement, and the validity period of the bids after their opening, specifying the value of the bid bond and its remaining in force throughout the validity period of the bid.
The validity period of the bid may not exceed ninety days from the date set for opening the envelopes, unless the conditions of the tender or practice provide otherwise, or the bidder agrees to extend the validity of the bid at the request of the Authority; the bid shall be deemed valid from the date of its submission until the end of its validity period.

Chapter Two – Submission of Bids

Article 12

Bids shall be submitted in the official tender documents, at the time set for them and in the manner prescribed in the documents, signed by the person authorised to sign, with all their pages stamped with the seal of the tenderer, and placed inside the official envelopes designated for that purpose, provided that these envelopes are sealed with red wax without mentioning the name of their sender or placing any sign or mark indicating him, and the bid envelopes shall be addressed to:
– The Tenders Committee of the Public Authority for Housing Welfare.
– Tender No. …………….. for …………………..
The first envelope contains:
– (The bid form including its value, the bid bonds, the certificate of compliance with the labour ratio …. ), to be placed in the box designated for that purpose.
The second envelope contains:
– (The tender originals, the bills of quantities, the compact discs) after being completed and stamped.
The third envelope contains:
– The other tender documents.
The bid documents shall be kept at the place determined by the administration of the Authority in a manner that ensures the safety and confidentiality of all tender documents.
The tender documents shall be personal to the tenderers to whom they were delivered and may not be transferred to others; no scraping, erasure or amendment may be made in the tender documents and their attachments.
Any bid that violates the provisions of this Article shall be excluded, unless the Committee decides to accept it by the unanimity of the members present for considerations relating to the public interest.
Bids may be submitted by electronic means if this is provided for in the tender or practice documents, provided that this is done in accordance with systems and programs that preserve the confidentiality of the information relating to the tender or practice.

Article 13

All bids and bonds shall be priced in Kuwaiti Dinars, unless the tender or practice documents provide otherwise.
The Authority shall not be responsible for opening letters of credit for tenders for the import of goods from abroad or for providing the labour required for the project.

Article 14

When preparing the price list and the bills of quantities, the bidder shall observe the following:
1) The total value stated in the bid form is the value relied upon by the Committee, regardless of any figures that may appear in the tender documents or their copies or any errors made by the tenderer when calculating the total price; no amendment to this price shall be accepted after the bid is submitted.
If the amount written in figures differs from the amount written in words, the Committee shall adopt the lower amount.
If, after the arithmetical check, the checked figure is found to differ from the figure recorded in the bid form, the lower of the two shall be relied upon.
2) If the arithmetical error exceeds 5% of the total price, the bid shall be excluded, unless the Committee decides, by the unanimous opinion of the members present, to accept it for considerations relating to the public interest.
3) Any discount on or increase to the total price of the bid shall not be taken into account unless it is recorded in the place designated for that purpose in the tender documents.
4) Scraping or erasure in the schedules of rates or their prices is prohibited, and every correction in the prices of the rates or otherwise shall be rewritten in red ink in Arabic figures and words and signed beside it.
5) The bidder is prohibited from striking out any of its items, any of the conditions of the technical specifications or any of the contract documents, or from making any amendment thereto whatsoever.
6) If the bidder omits to specify the value of any of the items stated in the documents, the total value shall be deemed to include it, provided that the pricing of this item is taken into account when carrying out the price reconciliation without any increase in the total price, unless otherwise provided in the tender or practice documents.
7) The price reconciliation shall be carried out with the winning tenderer before the tender is awarded to him, by reviewing the prices submitted by him, both as to their individual items and their total, and making material corrections if necessary, without prejudice to the total price of the bid; if the bidder refuses this, the Committee may exclude him and deem him to have withdrawn, with all the consequences that follow. In this case, it may award the bid to the next-ranked bidder or cancel the tender and re-invite it.
8) A bid that violates these provisions shall be excluded unless the Committee decides, by the unanimity of the members present, to accept it for considerations relating to the public interest, provided that its decision is reasoned.

Article 15

Where the tender or practice documents require samples of materials and goods to be submitted, the bid shall not be accepted unless it is accompanied by the required samples or by the Authority’s receipt for them.
These samples shall be examined to decide on their conformity with the specifications, and the result of the examination shall be presented to the Committee before deciding on the tender or practice.

Article 16

The bidder shall attach to his bid the bid bond provided for in the conditions of the announcement of the tender or practice; this bond shall be in the form of a certified cheque or a letter of guarantee from a bank approved in the State of Kuwait, issued in the name of the bidder in favour of the Authority, and not subject to any restriction or condition; bids not accompanied by this bond shall be excluded. Cash bonds and uncertified cheques shall not be accepted, and the bond shall be valid for the validity period of the bid specified in the conditions of the announcement of the tender or practice.
If the Committee is unable to decide on the bids within the period specified for their validity, the administration of the Authority shall request the bidders to renew the validity of their bids for an appropriate period, by a letter addressed by each of them to the Authority agreeing to the extension together with renewing the validity period of the bid bond; the bid of whoever does not agree to extend the validity period of his bid shall be excluded.

Article 17

The tenderer or practice participant may not submit more than one bid in the tender or practice unless he is an agent for several establishments or companies, in which case he may submit a bid on behalf of each of his principals in the tender or practice documents.
If the conditions of the tender or practice permit the submission of alternative offers, the tenderer may submit more than one bid, provided that he obtains another set of the official tender or practice documents and that it is clearly written on it that it represents an alternative offer.
An alternative offer is any offer that includes certain technical aspects serving the same purpose required in the tender or practice.

Article 18

The bid shall remain in force and irrevocable from the time of its submission until the end of its validity period, and no change in prices shall be taken into account after its submission.
If the bidder withdraws his bid during its validity, within its original period or its extended period, the bid bond submitted by him shall devolve to the Authority without the need for any notice, warning or the taking of any other judicial procedures.

Article 19

A box shall be provided for tenders and practices, kept at the premises of the Authority, in which the documents set out in Article (12) of this Regulation shall be deposited; the slot of the box shall be closed on the day and at the hour specified in the announcement of the tender or practice for the expiry of the deadline for submitting bids.

Article 20

No bid received by the Authority after the deadline specified in the tender announcement shall be accepted, whatever the reasons for the delay.

Chapter Three – Opening of Envelopes and Study of Bids

Article 21

The Committee for Opening Bid Envelopes shall be formed as follows:
– The Deputy Director General for Control and Audit, Chairman
– The Deputy Director General for Financial Affairs, Vice-Chairman
– The Director of the General Accounting Department, Member
– The Director of the Legal Affairs Office, Member
– The Director of the Documents and Contracts Department, Member and Rapporteur
For the meeting of the Committee to be valid, at least four of its members shall be present, including the Chairman or his Vice-Chairman.
Once the meeting is duly convened and at the specified time, the Committee shall open the box referred to in Article (19), record the number of envelopes deposited therein and give them serial numbers; the Chairman of the Committee shall then open all the bids in succession and announce the total value of each bid after signing it.
The Committee shall draw up minutes recording the procedures it has carried out, and the bid summary sheet shall be posted on the announcement board at the Authority, or electronically, or by the means determined by the Authority in this regard.

Article 22

The Envelope Opening Committee shall exclude the bids that violate the provisions of this Regulation and shall refer the accepted bids, together with the samples, to the competent department to study those bids technically and financially, including the particulars of the bid and the remarks and requirements contrary to the conditions of the tender or practice, and to submit recommendations to the Tenders Committee within the specified period, for their study and then for deciding on the award of the bids in accordance with the procedures set out in this Regulation and informing the Board of Directors thereof.

Chapter Four – Decision on Bids

Article 23

The Committee shall award the bid to the tenderer or practice participant who submitted the best bid in line with the requirements and evaluation criteria provided for in the tender or practice documents and their technical specifications.
If the subject of the tender or practice is divisible, the Committee may split the tender or practice without any change in prices.
If the Committee considers that there is justification for preferring a tenderer who submitted a higher price, it may issue its decision to award to him by a two-thirds majority of the members of the Committee, provided that the decision of the Committee in this regard is reasoned.
Before the tender or practice is awarded, it shall be ascertained that sufficient financial appropriations are available to cover the amount for which it is awarded.

Article 24

In supply tenders or similar tenders, the Committee shall award to the offer of the national product whenever it conforms to the specifications and conditions and the prices offered do not exceed the lowest prices offered for similar imported products by more than (15%) fifteen per cent.
The products referred to in the preceding paragraph shall conform to the specifications of the GCC Standardization Organization or the specifications applicable in the State of Kuwait – if any – and if none of these exists, international specifications shall apply.

* Replaced by Ministerial Resolution No. 41 of 2017 (Kuwait Al-Youm, Issue No. 1363, 22 October 2017).

Article 25

If the prices of the best bids are equal, the Committee may divide the works or quantities announced among the bidders of equal prices, provided that this does not harm the interest of the work; otherwise, lots shall be drawn among them.

Article 25 bis

Where several similar tenders are invited and their documents provide that no more than one tender shall be awarded to a single tenderer, the next bid in each tender shall be accepted after excluding the tenderer to whom an award has been made.
As far as possible, these tenders shall be invited in groups and at different time intervals.
The decision to exclude bids and to award the tender shall include the reasons on which it is based.

* Added by Ministerial Resolution No. 41 of 2017 (Kuwait Al-Youm, Issue No. 1363, 22 October 2017).

Article 26

The Committee shall cancel the tender or practice and it shall be re-invited if a single bid is received for some or all of the goods or works, even if it meets the conditions.
A bid shall be deemed single even if other bids were submitted with it, whenever those bids violate the conditions of the tender or practice or it is decided not to accept them.
The Committee may, by a two-thirds majority of its members, accept the single bid, provided that such acceptance is reasoned.
If only a single bid is submitted after the tender or practice is re-invited, the Committee shall examine its prices and suitability and decide on it.

Article 27

The decision of award and the notification of the winning tenderer thereof shall not give rise to any right of the winning bidder against the Authority in the event that the award is withdrawn, since he shall not be deemed a contracting party except from the date of signing the contract.

Part Three – Contracting Procedures

Article 28

The Authority shall notify the winning bidder of the decision of the Committee by registered letter with acknowledgement of receipt, to attend at the premises of the Authority to submit the performance bond and sign the contract within the period it specifies for him; the performance bond shall be in the form of a certified cheque or a letter of guarantee from a bank approved in the State of Kuwait, issued in the name of the winning tenderer in favour of the Authority, not subject to any condition or reservation, and valid throughout the period of execution of the contract.
If he does not come forward within this time limit, he shall be deemed to have withdrawn and the bid bond submitted by him shall devolve to the Authority without the need for any notice, warning or the taking of any judicial procedure, and without prejudice to the right of the Authority to impose the penalties provided for in this Regulation.
The bidder shall not be deemed a contracting party except after submitting the performance bond and signing the contract.

Article 29

In the event of the withdrawal of the winning tenderer or practice participant, the Committee may decide to cancel the tender or practice, re-invite it, or award it to another tenderer or practice participant in accordance with the provisions of this Regulation, and the bid bond shall devolve to the Authority.

Article 30

The bid bonds submitted by the tenderers or practice participants to whom the tender or practice was not awarded shall be returned to their owners, except (the first three), which shall not be returned until the winning tenderer or practice participant has submitted the performance bond and signed the contract.

Article 31

The Director General may issue variation orders by way of increase or decrease to the contracts concluded in accordance with this Regulation, provided that their non-algebraic sum does not exceed (5%) of the contract value; if it exceeds (5%) of the contract value, they may only be issued with the approval of the Committee.
The approval shall be issued on the basis of a reasoned memorandum from the competent sector of the Authority and subject to the availability of the financial appropriation.

* Replaced by Ministerial Resolution No. 41 of 2017 (Kuwait Al-Youm, Issue No. 1363, 22 October 2017).

Part Four – Final Provisions

Article 32

The Committee may, at any time before the contract is signed, cancel the tender or practice, even after deciding on it and awarding it to one of the tenderers or practice participants, provided that its decision in this regard is reasoned; the Administration shall notify the decisions of the Committee to the persons concerned.
This cancellation shall not give rise to any rights against the Authority for the winning tenderer or practice participant or for any other bidders.

Article 33

If the Authority cancels the tender or practice before the date for opening the bids, the amounts paid for purchasing the documents shall be refunded to those who purchased them, without any liability on the Authority in this respect; if the cancellation is after the said date, the price may not be refunded except to those who participated in the tender or practice.
However, if the tender is cancelled because the bids do not conform to the specifications or conditions, the price of the documents may not be refunded.

Article 34

Without prejudice to the legal and contractual rights of the Authority, if the winning tenderer or practice participant violates the provisions of this Regulation, or breaches any of the conditions of the contract or any of his established obligations, the Committee may impose on him the penalty of a warning, or of debarment from participating in the tenders of the Authority for the period determined by the Committee.
The penalty shall be imposed after summoning the winning tenderer or practice participant by registered letter or by mail, hearing his statements and examining his defence; if he fails to appear before the Committee without an acceptable excuse for more than (15) fifteen days from the date of his summons, the Committee may issue its decision in his absence.
Whoever has been the subject of a decision imposing the penalty may file a grievance against this decision before the Committee within (15) days from the date of his notification thereof. The Committee shall submit its recommendation to the Minister, whose decision on the grievance shall be final, and the grievant shall be notified of the decision issued on his grievance by registered letter or by e-mail.

* Replaced by Ministerial Resolution No. 41 of 2017 (Kuwait Al-Youm, Issue No. 1363, 22 October 2017).

Article 35

In matters for which no provision is made in this Regulation, the provisions of Law No. 49 of 2016 referred to above and its Executive Regulations shall apply to the tenders of the Authority.

* Added by Ministerial Resolution No. 41 of 2017 (Kuwait Al-Youm, Issue No. 1363, 22 October 2017).

Issued on 17 April 2016 and published in the Official Gazette Kuwait Al-Youm on 24 April 2016.