Global Government Contracting: Asia Pacific

Country Contacts

Kawun Kakar
Managing Partner, Kakar Advocates LLC

Thomas Kraemer
Senior Counsel, Kakar Advocates LLC

Helay Khwajazada
Senior Associate,  Kakar Advocates LLC

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of ‘green’ contracting opportunities?

Previously, most of the advertising of tenders was carried out through the National Procurement Authority (NPA) website.  The NPA was the responsible authority for ensuring compliance with the Procurement Law.  Large tenders also required approval of the National Procurement Commission, headed by the President.  There was no separate source for the announcement of green tenders.

The government of the Islamic Republic of Afghanistan fell in August 2021, and there is an interim government in place.  In December 2022, the interim government announced the establishment of a National Procurement Commission headed by the Deputy Prime Minister for Economic Affairs, and including the Minister of Finance, the Minister of Economy, Head of the Administrative Office, and the minister or head of the procuring entity.

The interim government has not yet provided further guidance on the procurement process.

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity?

No. Foreign companies are free to bid on government projects unless otherwise provided in the tender.

Is there any requirement for ‘local content’?

There are no local content requirements, but government entities must give preference to local procurement when feasible. Procuring entities should give preference to domestic products over foreign products, local companies over foreign companies, and foreign companies partnering with local companies.

The Legal Procurement Framework

What is the applicable procurement legislation?

The applicable procurement legislation is as follows:

• Procurement Law (Official Gazette No. 1223, dated 11.08.2016)

• Procurement Procedure (No. 4939, dated July 2016)
  (link not available)

• Public-Private Partnership (PPP) Law (Official Gazette No. 1322, dated September 5, 2018)

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

Afghanistan has not ratified the WTO (GPA). However, the committee of WTO granted Afghanistan observer status on October 18, 2017. This means that Afghanistan has a limited ability to participate in the IGO’s activities and also limited ability to vote and make resolutions.

If so, how do these international trade agreements interact with the domestic procurement legislation?

Not applicable.

What types of procuring entity need to comply with the procurement legislation?

Government entities and other non-budgetary units funded by public funds (government budget) are required to carry out procurement in accordance with the Procurement Law except in the following situations:

• The procurement of goods, or services requires confidentiality to protect the national interest.

• The procurement rules of an international donor or funding institutions requires a different procedure.

• The procuring entity is located abroad and must conduct procurement in accordance with the rules and regulations of the host country.

• The procuring entity is a mixed public-private company where the Afghan government’s share is less than 25%.

Article 3(21) of the Procurement Law defines an entity as follows:

‘ministries, general directorates, independent state commissions, municipalities, state-owned enterprises, and their secondary budgetary units, other budgetary units or state-owned companies and private-state owned companies’.

Which types of contracts are covered?

See above. In addition, competitive bidding is not required for procurements of less than AFN 5,000.

Are there any exemptions to competitive bidding?

Yes, the Procurement Law and Procedure allow the single source method in certain circumstances.

Article 22 of the Procurement Procedure states that single-source procurement method may be used in the following cases:

• The bidder has exclusive rights of invention or production or the procurement could only be provided by a single source.

• In circumstances involving imminent threat to public health, welfare, or safety, or an imminent threat of damage to property, and the time required for engaging in tendering proceedings or other procurement methods would be impractical.

• The value of goods, works or services does not exceed AFN 5,000.

Are there any proposals to amend the applicable procurement legislation?

No specific proposals have been announced publicly. However, the interim government has directed all government offices to review their laws and regulations and propose changes as appropriate.

Key procurement resources

There currently are no key resources, other than those listed above, for public procurement.

Country Contacts

José de Ponte
Partner, DLA Piper

Alyson Eather
Partner, DLA Piper

NEW SOUTH WALES

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of 'green' contracting opportunities?

NSW tenders are advertised on the NSW Government’s eTender site here.

There is no separate source for government announcements of ‘green’ contracting opportunities, however the Supplier Code of Conduct contains a provision on environmental sustainability. At the Local Government level, the NSW Government has released a Sustainable Procurement Guide for local government in NSW.

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity?

No, however there is a Procurement Board Direction PBD 2019-05 Enforceable Procurement Provisions which establishes legal requirements for NSW Government agencies arising from international procurement agreements.

Is there any requirement for 'local content'?

Yes, under the Aboriginal Procurement Policy (2021), there are requirements for a minimum of 1.5% Aboriginal participation in contracts $7.5 million and above. There are also circumstances where Aboriginal Suppliers and SMEs are preferenced (under the Small and Medium Enterprise and Regional Procurement Policy (2021)), as outlined below.

The Legal Procurement Framework

What is the applicable procurement legislation?

• Public Works and Procurement Act 1912 (NSW) (PWPA);

• Public Works and Procurement Regulation 2019 (NSW);

• Government Sector Finance Act 2018 (NSW);

• Independent Commission against Corruption Act 1988 (NSW);

• Government Information (Public Access Act) 2009 (NSW) (if the value is greater than $150, 000).

• NSW Government Procurement Policy Framework; and

• Various other policies, Procurement Board Directions (PBDs), Treasury’s Circulars and Premier’s Memoranda.

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

Yes.

If so, how do these international trade agreements interact with the domestic procurement legislation?

Australia's membership of the GPA affords Australian businesses of all sizes reciprocal, legally binding access to the government procurement markets of the 47 current GPA members worth around A$2.5 trillion each year. The European Union and its 27 member states, including Germany and France, as well as the United Kingdom, the United States, Canada, Norway, Japan, New Zealand and Chinese Taipei are all members of the GPA.

What types of procuring entity need to comply with the procurement legislation?

Under section 163 of the PWPA, the procurement legislation applies to all “government agencies” but does not apply to a local council or other local authority, or the Parliament of New South Wales. A “government agency” is defined under section 162 to mean:

• a government sector agency (within the meaning of the Government Sector Employment Act 2013);

• a NSW Government agency;

• any other public authority that is constituted by or under an Act or that exercises public functions (other than a State-owned corporation); and

• any State-owned corporation prescribed by the regulations.

Which types of contracts are covered?

The legislation applies to contracts for the procurement of goods and services of any kind (including construction works and services), pursuant to section 163 of the PWPA.

Are there any exemptions to competitive bidding?

Yes, in accordance with various policies, regulations and PBDs as below, direct dealings must be conducted in accordance with the Direct Dealing Guidelines.

Are there any proposals to amend the applicable procurement legislation?

No.

Key procurement resources

• Buy.nsw.gov.au website here

• Policy library

• Part 11, PWPA

• Procurement Policy Framework

QUEENSLAND

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of 'green' contracting opportunities?

The Queensland Government has two tender sites:

• QTenders—tenders for goods and services, including some building and construction projects

• eTender—tenders for construction and demolition, fit-out and maintenance projects, including for

There is no separate source for government announcements of ‘green’ contracting opportunities, however the Queensland Procurement Policy (2021) includes supplier environmental targets and commitments.

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity?

No, however, all suppliers must meet the Ethical Supplier Threshold, including paying employees’ wages that are not below the applicable modern award.

Is there any requirement for 'local content'?

There are no strict requirements in terms of quotas etc. however, the Government has implemented the Queensland Charter for Local Content and corresponding Agency Guidelines to optimise local content by maximising participation of capable local industry and to minimise the compliance burden on project proponents and their contractors. There is also an aggregate SME target set across all Queensland Government agencies to collectively source at least 30% of procurement value from Queensland SMEs.

The Legal Procurement Framework

What is the applicable procurement legislation?

Under the Financial Management and Performance Standard 2009 (Qld), each accountable officer of a department or statutory body must comply with the Queensland Procurement Policy (2021).

Other key policies flagged by the Queensland Government include:

• public housing

• civic, education, health and sports facilities.

• Queensland Government Supplier Code of Conduct

• Eliminating modern slavery in government supply chains: Framework and roadmap or priority action 2022 – 2023

• Queensland Leasing Approval Policy for Public Sector Entities

• Quality Assurance Policy (PDF, 176KB)

• Queensland Charter for Local Content

• Queensland Indigenous Procurement Policy

• Queensland Small Business Procurement Commitment – Action Statement

• Building and Construction Training Policy

• ICT SME Participation Scheme Policy

• IS13 for the procurement and disposal of ICT products and services

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

Yes.

If so, how do these international trade agreements interact with the domestic procurement legislation?

Australia's membership of the GPA affords Australian businesses of all sizes reciprocal, legally binding access to the government procurement markets of the 47 current GPA members worth around A$2.5 trillion each year. The European Union and its 27 member states, including Germany and France, as well as the United Kingdom, the United States, Canada, Norway, Japan, New Zealand and Chinese Taipei are all members of the GPA.

What types of procuring entity need to comply with the procurement legislation?

The policy is mandated for application to budget sector agencies, government-owned corporations, statutory bodies and special purpose vehicles.

Which types of contracts are covered?

The Queensland Government has separated their contracts into six buying categories:

• Transport and infrastructure services;

• Building, construction and maintenance services;

• Information and Communication Technology (ICT) services;

• Social services;

• Medical goods and services; and

• General goods and services.

Are there any exemptions to competitive bidding?

Yes, the Department of State Development, Infrastructure, Local Government and Planning has developed an Investment Facilitation process for exclusive transactions Guideline (July, 2022). Exclusive transactions must align with government priorities, justify its exclusive dealing with government, represent value for money and be financially feasible with an investor that has the financial and technical capacity, capability and experience to deliver the proposal.

Are there any proposals to amend the applicable procurement legislation?

No.

Key procurement resources

• Queensland Procurement Policy 2021

• Queensland Government Procurement Strategy (2017)

• Business Queensland About supplying to Queensland Government information page

• Queensland Government Procurement Resources information page

VICTORIA

Where are government tenders advertised? Are there any different sources for government announcements of 'green' contracting opportunities?

VIC tenders are advertised on the Current Tenders page of the Buying for Victoria site. State Government tenders managed by VicRoads are listed on the VicRoads website.

There is no separate source for government announcements of ‘green’ contracting opportunities, however the Social Procurement Framework integrates sustainable procurement practices to minimise the impact of project impacts to the environment. The Victorian Government also has a range of other policies which encourage environmental sustainability including the:

• Recycling Victoria – A new economy (2020); and

• Recycled First Policy (2020).

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity?

No.

Is there any requirement for 'local content'?

Yes, there are two programs under the Local Jobs First Policy which set minimum content requirements. Under the Victorian Industry Participation Policy, minimum local content requirements are set for government projects work $50 million or more or for other projects as agreed. Under the Major Projects Skills Guarantee Policy (MPSG), all construction projects valued at or over $20 million are required to use Victorian apprentices, trainees or cadets for at least 10 percent of the total estimated labour hours.

The Legal Procurement Framework

What is the applicable procurement legislation?

• Goods and services - Financial Management Act 1994 (Vic), Standing Directions 2018 under the Financial Management Act 1994 and relevant Victorian Government Purchasing Board’s Goods and services supply policies

• Construction – Project Development and Construction Management Act 1994 (Vic) and Ministerial Directions and Instructions for Public Construction Procurement

• Social – Social Procurement Framework

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

Yes.

If so, how do these international trade agreements interact with the domestic procurement legislation?

Australia's membership of the GPA affords Australian businesses of all sizes reciprocal, legally binding access to the government procurement markets of the 47 current GPA members worth around A$2.5 trillion each year. The European Union and its 27 member states, including Germany and France, as well as the United Kingdom, the United States, Canada, Norway, Japan, New Zealand and Chinese Taipei are all members of the GPA.

What types of procuring entity need to comply with the procurement legislation?

The Victorian Government Purchasing Board’s goods and services policies apply to:

• Departments, specified entities including VGPB expansion agencies from 1 July 2021;

• Victorian Public Sector Commission;

• Offices or bodies specified in section 16(1) of the Public Administration Act 2004; and

• Administrative Offices established in relation to a department under Section 11(a) of the Public Administration Act 2004

A list of the departments, agencies and bodies which need to comply with the legislation can be found on here on the Buying For Victoria website.

Which types of contracts are covered?

Goods and services, as under the Financial Management Act 1994 (Vic).

“public construction” as defined under the Project Development and Construction Management Act 1994 (Vic) i.e. any matter relating to the construction, maintenance, rehabilitation, alteration, extension or demolition of any improvements on land by, or on behalf of, Departments or public bodies and includes –

• design and construction practices;

• tendering processes;

• project delivery;

• contract administration.

Are there any exemptions to competitive bidding?

Yes.

In construction procurement, direct sourcing can be used in accordance with the Competition and contestability (Construction Direction and Instruction 3.2). Under this Direction, agencies may use a Limited Tender if:

• the value of the engagement is expected to be less than $50,000 (inclusive of GST),

• the value of the engagement is expected to be:

• in the case of Works, more than $50,000 (inclusive of GST) but less than $500,000 (inclusive of GST)

• in the case of Construction Services, more than $50,000 (inclusive of GST) but less than $200,000 (inclusive of GST) in which case the Agency must invite at least three potential tender participants to participate in the Limited Tender.

• the Special Circumstances set out in Instruction 3.2.2 apply, in which case the Agency must comply with the requirements in paragraph (b)

• procuring under a Supplier Panel established in accordance with the Directions, as the rules of that panel allow.

In goods and services procurement, a limited invitation to supply can be used in accordance with the goods and services procurement guide. This includes in circumstances where:

• one or more of the Special Circumstances apply, as detailed in 'Government procurement under International Agreements - procurement guide';

• the procurement requirement can only be provided by an extremely limited field of suppliers;

• the procurement requirement is related to accessing specific intellectual property, specific technical requirements or maintaining a common operating platform;

• there is an opportunity to build on market based solutions and to develop strategic partnership arrangements; and

• there is a requirement to address security requirements, protect patents, copyrights, propriety information or intellectual property.

Are there any proposals to amend the applicable procurement legislation?

No.

Key procurement resources

Buying for Victoria information pages

• About Victorian Government Procurement

• Procurement policies

• Supplying to government

• Tender website home page

Country contact

Ummi Jalilova
Partner, Grata International, Azerbaijan

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of 'green' contracting opportunities?

Government tenders are announced on the unified internet portal of public procurements.

There are no specific sources for the announcement of "green" contracting opportunities. 

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity? 

Generally, any resident or non‑resident legal entity or individual or association of legal entities may participate as a bidder in public procurement procedures held in the Republic of Azerbaijan, regardless of its state affiliation.

However, the legislation also requires successful non-resident bidders in tenders relating to construction, construction installation and construction of manufacturing sites to have permanent establishments registered in accordance with the Tax Code of the Republic of Azerbaijan (or divisions that do not establish permanent establishments) prior to concluding the contract.

In addition, procuring entities are allowed to limit the participation of bidders in procurement procedures based on their state affiliation. However, in this case, they have to include the reasons for such a limitation in the report of procurement procedures.

Is there any requirement for 'local content'?

No such requirement is established in the legislation.

The Legal Procurement Framework

What is the applicable procurement legislation? 

Procurement legislation:

• Law of the Republic of Azerbaijan "On Public Procurement" dated 27 December 2001 #245‑IIQ (Azerbaijani version, English version)

• Decree #668 of the President of the Republic of Azerbaijan "On application of the Law of the Republic of Azerbaijan on Public Procurement" dated 29 January 2002

• Resolution #34 of the Cabinet of Ministers of the Republic of Azerbaijan "On approval of sample of procurement contract on goods (works and services)" dated 28 February 2003; 

• Resolution #106 of the Cabinet of Ministers of the Republic of Azerbaijan "On approval of methods of calculating the estimated price of goods (works and services)" dated 18 March 2019; 

• Decree #647 of the President of the Republic of Azerbaijan "On unified internet portal of public procurements" dated 16 April 2019

Legislative acts covering utilities and defence:

• Housing Code of the Republic of Azerbaijan;

• Resolution #164 of the Cabinet of Ministers of the Republic of Azerbaijan "On approval of the rules on determination and regulation of limits on consumption of public utilities (electricity and thermal energy, natural gas and water) in budgetary institutions" dated 12 April 2019 ; 

• Resolution #40 of the Cabinet of Ministers of the Republic of Azerbaijan "On approval of tariffs for the use of living space (housing fee) and housing and utility services in the houses of state and public housing fund in the Republic of Azerbaijan" dated 10 March 2000;

• Law of the Republic of Azerbaijan "On the protection of public health" dated 26 June 1997 #360‑IQ.

Legislative acts covering PPP and concession:

• Civil Code of the Republic of Azerbaijan; 

• Law of the Republic of Azerbaijan "On implementation of investment projects related to construction and infrastructure facilities on the basis of special funding" dated 15 March 2016 #177‑VQ;

• Decree of the President #867 "On the application of the Law of the Republic of Azerbaijan "On the implementation of special financing of investment projects related to construction and infrastructure facilities" dated 20 April 2016;

• Decree #1149 of the President "On the Rule on the implementation of the infrastructure projects by investors under the BOT model, requirements to the investors, as in accordance with type of construction and infrastructure projects, terms and conditions of contracts, and determination of the value of the goods and services obtained as a result of investment" dated 7 December 2016;

• Decision of the Board of the Ministry of Finance #Q‑06 "On approval of the Regulation on methodology for calculation of cooperation assistance and guarantee commitment charges under contracts signed within "Build‑Operate Transfer Model" dated 22 May 2017. 

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

No

If so, how do these international trade agreements interact with the domestic procurement legislation?

Not applicable.

What types of procuring entity need to comply with the procurement legislation?

The public procurement legislation applies to the procurement of goods, works and services performed in the Republic of Azerbaijan by:

• state enterprises and organizations (institutions); and

• enterprises and organizations, state share in the charter fund of which is 30 and more percent,

at the expense of state funds, loans and grants obtained by the state and received under state guarantee.

Which types of contracts are covered? 

Contracts under which goods, works and services are purchased at the expense of state funds are covered by the legislation. 

"State fund" includes:

• funds of the state budget of the Republic of Azerbaijan; 

• loans, grants, and foreign aid received under international agreements and treaties entered into by the state;

• funds of non‑budget foundations of organizations financed by state budget; and 

• other funds that are included in the state fund as per the legislation.

In addition, the Public Procurement Law identifies six methods of the procurement of goods, services and works. These are open tender, two‑stage tender, limited or closed tender, request for proposals, request for quotations and direct or single‑source procurement. As per the legislation in force, all public procurements of more than AZN 250 million must be carried out through the formal tender processes.

Are there any exemptions to competitive bidding? 

A procuring entity may use the single‑source procurement method if:

• the procured goods are only available from a specific contractor or a particular contractor possesses specific rights over such goods, works and services, and their substitutes or alternatives are unavailable in the market; 

• an urgent demand for goods, works and services has arisen, and conducting tender procedures or use of any other procurement method is inexpedient; if it was impossible to foresee cases that led to urgency of demand or if such cases are not the result of a delay by procuring entity;

• an urgent demand for such goods, works and services has arisen in connection with emergencies if the use of other procurement methods is inexpedient in view of the time to be spent on them; or

• the procuring entity after procurement of goods, equipment, technology or services from any contractor decides that procurement of goods, works and services from a particular contractor will ensure their compliance with standardization considerations or existing goods, equipment, technology or services.

The procurement legislation does not provide a specific definition for direct procurement and conditions under which it might be applied, only establishing that the direct procurement method can be used upon getting approval from the Ministry of Economy of the Republic of Azerbaijan.

Are there any proposals to amend the applicable procurement legislation?

A draft of the new Law on Public Procurements is being prepared by the commission, which was established in 2020. The Draft Law has already been agreed upon with certain government agencies and is expected to enter into force in 2023.

Key procurement resources

The main legislative acts regulating the procurement procedure in the Republic of Azerbaijan are the followings:

• Law of the Republic of Azerbaijan "On Public Procurement" dated 27 December 2001 #245‑IIQ (Azerbaijani version, English version);

• Decree #668 of the President of the Republic of Azerbaijan "On application of the Law of the Republic of Azerbaijan on Public Procurement" dated 29 January 2002; 

• Resolution #34 of the Cabinet of Ministers of the Republic of Azerbaijan "On approval of sample of procurement contract on goods (works and services)" dated 28 February 2003; 

• Resolution #106 of the Cabinet of Ministers of the Republic of Azerbaijan "On approval of methods of calculating the estimated price of goods (works and services)" dated 18 March 2019; 

• Decree #647 of the President of the Republic of Azerbaijan "On unified internet portal of public procurements" dated 16 April 2019).

Country Contacts

Jay Cohen
Partner, Tilleke & Gibbins

Chandavya Ing
Associate, Tilleke & Gibbins

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of ‘green’ contracting opportunities?

The Law on Public Procurement requires advertisements in order to select bidders; however, the law does not indicate the manner of the advertisements or where the advertisements must be placed in terms of geographical locations. In practice, we mostly see online tenders being advertised by ministries/authorities on their websites as well as in local newspapers. For example, please refer to the following links:

• Tenders announced by the General Department of Public Procurement of the Ministry of Economy and Finance are accessible here.

• Tenders announced by the Ministry of Education, Youth, and Sport are accessible here.

• Tenders announced by the Tonle Sap Authority are accessible here.Tenders that are ADB-financed project are accessible here.

• Tenders advertised on Phnom Penh Post are accessible here.

As of June 2022, the Cambodian government is still working on their Green Public Procurement Policy. Therefore, there are no different sources for the announcement of ‘green’ contracting opportunities.

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity?

No. Under Article 27 of the Law on Public Procurement, bidders must register their type and level of classification at the Ministry of Economy and Finance in order to be eligible to participate in public procurement. Bidders are classified according to their capacity to  implement contracts. Article 27 further provides that the procedures for classifying the type and level of bidders shall be determined by a Prakas (internal regulation). However, up until June 2022, no such regulation has been issued.

Although Article 27 requires registration, other regulations such as the Public Procurement Handbook and the Sub-Decree 105 on Public Procurement suggest that this rule is not absolute since there are circumstances where such requirement is waived. For example, Article 28 of Sub-Decree 105 states that all bidders are not required to register for classification in order to have the right to buy bidding documents or request to bid, unless the bidder is bidding for a project funded by the Cambodian government.

Therefore, there is no clear provision which  requires bidders to be locally incorporated or create a special purpose entity in Cambodia in order to participate in  procurement.

Is there any requirement for ‘local content’?

No.

The legal procurement framework

What is the applicable procurement legislation?

The Law on Public Procurement dated January 14, 2012 (accessible only in Khmer language)

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

No.

If so, how do these international trade agreements interact with the domestic procurement legislation?

Not applicable.

What types of procuring entity need to comply with the procurement legislation?

Ministries, institutions, municipalities, provinces, cities, villages, Khans, communes, districts, public enterprises, public administrative enterprises, other financial autonomous entities and public-private partnerships that implement public procurement activities.

Which types of contracts are covered?

The Law on Public Procurement covers all public procurement contracts in Cambodia, regardless of the source of funds, except for:

• any procurement which is funded by a development partner needs to comply with the procedure specified under the associated financial agreement with that development partner;

• any procurement which impacts on confidential information relating to national defence and public order; such procurement needs approval from the Prime Minister; and

• the granting of concessions by the Government which must comply with separate laws and regulations.

The law does not limit its application to procurement contracts of a certain financial threshold.

Are there any exemptions to competitive bidding ?

Public procurement in Cambodia can take place without competitive bidding. However, this method can only be implemented in the following circumstances:

• Procurement target (be it a tool or technical specification) has only one source;

• Procurement target has been competitively and publicly tendered once and it is urgently needed with no sufficient time for a competitive and public tender for the second time;

• Competitive and public tender for the second time is not successful;

• Urgent need at times of natural disasters or other emergencies where there is limited time, and it is not possible to wait and use other procurement methods; and

• For the purpose of research, experimentation, or development.

Moreover, a prior approval from the Ministry of Economy and Finance is required.

Are there any proposals to amend the applicable procurement legislation?

We are not aware of any proposed amendment of the current Law on Public Procurement.

Key procurement resources

• Sub-Decree 105 on Public Procurement dated October 18, 2006 (accessible only in the Khmer language)

• Prakas 381 on the Enforcement of the Handbook on the Implementation of Rules and Regulations governing Public Procurement dated June 15, 2010 (accessible only in the Khmer language)

Country Contacts

Carolyn Dong
Partner, DLA Piper

Tina Xia
Partner, DLA Piper

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of 'green' contracting opportunities?
Central government procurement laws, regulations, procedures, and tender notices are published here . The website also contains links to sites of local government tenders.

The platforms for central and local government tenders cover "green" contracting opportunities which are not separately announced. 

China’s green government procurement policy is implemented through two "green" procurement schemes: Environmental Labelling Product (ELP) procurement and Energy Conservation Product (ECP) procurement. Two public procurement product lists, ie the ELP List and the ECP List, have been published and are subject to regular updates. Governmental agencies at all levels, institutions and organization that use public funds for procurement shall give priority to products on the two lists. The lists set out names and certification requirements of the products, and specify which products shall be preferentially purchased and which are subject to compulsory purchase. 

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity? 
No.

However, Article 10 of the Government Procurement Law of the People’s Republic of China (GPL) provides that, procuring entities must procure domestic goods, construction and services, unless (i) they are not available in China or cannot be acquired on reasonable commercial terms; or (ii) they are procured for use outside China.

If business activities are to be performed in China, the tendering documents may require the bidder to be a company registered in China. 

Companies carrying on business in China are required to set up a subsidiary or branch. 

Is there any requirement for 'local content'?
There is no legislative requirement on contractors for the implementation of local content.

However, the GPL requires suppliers participating in a government procurement to have the ability to undertake a procurement, including having requisite qualifications and a clean record of paying taxes and making social security contributions for employees.

Although procuring entities can impose specific conditions of the supplier based on the nature of the procurement project, they must not subject the supplier to differential or discriminatory treatment based on unreasonable conditions such as location and ownership. 

The Legal Procurement Framework

What is the applicable procurement legislation? 

China’s public procurement market is regulated by two major pieces of legislation, the GPL and the Tendering and Bidding Law of the PRC (TBL), including their implementation regulations. The scope of the GPL currently covers procurement activities of governmental agencies at all levels, institutions and organizations, but state-owned enterprises (SOEs) are not included. The TBL imposes uniform tendering and bidding procedures on certain classes of procurement projects in China, notably infrastructure and public utility projects, without regard to the type of entity that conducts the procurement. 

The Administrative Measures for Government Procurement under Public-Private Partnership Projects regulate procurement procedures and relevant dispute settlement and supervision and inspection mechanisms for PPP projects. 

Military procurement, as well as procurements that involve State security and State secrets are not subject to the GPL. The military procurement guidelines are provided under the Law of the People's Republic of China on National Defence issued by the Central Military Commission and effective on 1 January 2021. 

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

China applied for membership in the GPA in 2007 but the accession has not been accepted yet. 

The relevant free trade agreements to which China is a party generally have the government procurement provisions but such provisions only provide principal rules and the detailed procurement commitments will be agreed after China's accession to the GPA. 

If so, how do these international trade agreements interact with the domestic procurement legislation?

In general, international trade agreements are incorporated into domestic legislation and implemented in China. 

Unless specially provided in local regulations, international trade agreements are not otherwise directly applicable to Chinese procuring entities.

What types of procuring entity need to comply with the procurement legislation?

Governmental agencies at all levels, institutions and organization, as well as their procurement agencies, are required to comply with the GPL. State owned enterprises are not subject to the GPL.

The TBL applies to all types of entities that conduct procurements that fall under the scope of the TBL.

Which types of contracts are covered? 

The GPL and TBL apply to the procurement of goods, construction and services that fall under the "centralized procurement catalogue" or whose value exceeds the prescribed procurement thresholds.

Different catalogues and financial thresholds are published to be applied to central and local procuring entities. 

For procuring entities that are subject to central budget, under the Catalogue and Thresholds for Central Budget Entities published by the State Council, the total financial thresholds are RMB 1 million for goods and services procurement, and RMB1.2 million for procurement of construction projects.

For procuring entities that are subject to local budget, the Catalogue and Thresholds for Local Budget Entities published by the Ministry of Finance sets lower financial thresholds. 

The above catalogue and thresholds are subject to regular updates. 

Are there any exemptions to competitive bidding? 

Government should adhere to the principle of fair competition and not treat suppliers differently or discriminately (Art. 22 of the GPL).

There are three exceptions to competitive bidding principles (Art. 31 of the GPL). These are:

• Only one supplier: goods or services or services can be procured from only one supplier due to certain intellectual property or other public service restrictions; 

• Emergency: goods or services cannot be procured from other suppliers due to unforeseeable emergencies; and

• Supplementary procurement with a low value (lower than 10% of original contract).

Are there any proposals to amend the applicable procurement legislation?

On 4 December 2020, China's Ministry of Finance issued a notice on soliciting public opinions on the "Government Procurement Law of the People's Republic of China (Draft amendment for comments)" on the proposed revisions to the GPL. 

One of the objective of the revisions is to facilitate China's accession to the GPA. The revisions include, amongst others, expanding the scope of procuring entities to cover public service SOEs, increasing the transparency of procurement policies, and improvement of the efficiency of procurement procedures. More information can be found here.

Key procurement resources

National Public Resource Trading Platform, a government sponsored platform that is formed based on national rules on setting up a consolidated public resource trading platform. 

Bidding Resource Network, a platform set up by a third party licensed operator and may offer better searching functions.

Country Contacts

Shivanshu Thaplyal
Partner, Khaitan & Co

Tavishi Srivastava
Senior Associate, Khaitan & Co

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of 'green' contracting opportunities?

Advertisement of government tenders:

With a view to prevent corruption and improve transparency in public procurement processes, the Department of Expenditure (DoE) (formed under the Ministry of Finance, Government of India (GoI)), made online publication of tender enquiries on the Central Public Procurement Portal (CPPP) mandatory for procurements with an estimated value of ~USD 2,445^[1] (INR 2,00,000) or above (except in certain situations concerning national security and strategic considerations), through various office memoranda dated 30 November 2011, 30 March 2012 and 9 January 2014 and 21 January 2015.

Per the General Financial Rules 2017 (GFR), invitation to tenders for procurement of goods of estimated value of ~USD 303, 581 (INR 25,00,000) and above must be advertised on CPPP, Government e‑Marketplace (GeM) as well as ministry/ department websites.^[2] However, for procurement of goods of value less than ~USD 303, 581 (INR 25,00,000), copies of tender documents are required to be sent directly by speed post/ registered post/ courier/ email to three or more firms listed as registered suppliers of such goods, and organisations also need to publish such limited tender enquiries on CPPP as well as ministry/ department websites.

Through CPPP, the GoI facilitates publication of, among others, notice inviting tender (NIT), tender documents, addendums and corrigenda, tender inquiries, and contract award details, by all the central government departments, organizations, autonomous bodies, and Central Public Sector Enterprises (CPSEs). CPPP provides a single point access to all procurement related information in relation to tenders (active tenders, bid awards, cancelled/ retendered bids, debarment list etc) across various government ministries/ departments, including the organizations under them.

In addition to the above, there is a separate portal for tenders released by public sector enterprises as well as states and union territories.

Government announcements of 'green' contracting opportunities:

Pursuant to the Paris Agreement 2015 and in response to Conference of the Parties (COP) decisions^[3], India submitted its first intended nationally determined contribution (INDC) in 2016 (for the period 2021 to 2030), with details of various government initiatives in several areas, including, among others:

• promotion of clean energy and enhancement of energy efficiency - National Solar Mission, Zero Effect, Zero Defect (ZED) along with Make in India campaign to enhance efficiency and self‑reliance;

• promotion of solid waste management - 'Swachh Bharat Abhiyan' (Clean India Mission);

• health and sanitation - formulation of a 'Health Mission' under the National Action Plan on Climate Change (NAPCC) and programmes like Integrated Disease Surveillance Programme (IDSP), National Vector Borne Disease Control Programme (NVBDCP) to deal with vector borne diseases such as malaria, dengue etc;

• green transportation - Faster Adoption and Manufacturing of Hybrid and Electric Vehicles (FAME India), Green Highways (Plantation and Maintenance) Policy etc.

Also, in the twenty sixth session of the Conference of the Parties (COP26) to the United Nations Framework Convention on Climate Change (UNFCCC), India highlighted the following climate action targets: (i) reaching 500GW non‑fossil energy capacity by 2030; (ii) achieving 50% of its energy requirements from renewable energy by 2030; (iii) reduction of total projected carbon emissions by one billion tonnes by 2030; (iv) reduction of the carbon intensity of the economy by 45% by 2030; and (v) achieving the target of net zero emissions by 2070.

Against the backdrop of the INDC and COP26 targets announced by the GoI, the relevant ministries have announced various policies, in order to promote renewable energy etc pursuant to which tenders are issued by procuring entities. For example – the announcement of the National Wind‑Solar Hybrid Policy dated 14 May 2018 by the Ministry of New and Renewable Energy (MNRE) pursuant to which Solar Energy Corporation of India Limited (SECI) issued tenders for 10,100 MW of hybrid/ round‑the‑clock/ peak power capacity. Further the Ministry of Power announced the Green Hydrogen Policy on 17 February 2022. Subsequently, the Government of India recently approved the National Green Hydrogen Mission on 4 January 2023. Additionally, to support India’s 2030 goal of installing 500GW of non-fossil energy, the Ministry of Power issued guidelines to procure and utilize battery energy storage systems (BESS) as part of the generation, transmission and distribution assets  (BESS Guidelines), with the aim to facilitate growth of the battery storage sector. Pursuant to the BESS Guidelines, various tenders have been released by SECI and National Thermal Power Corporation (NTPC) for BESS projects. 

While there is no specific portal for government announcements regarding 'green' contracts, tenders relating to renewable energy, green hydrogen, electronic vehicles, healthcare etc would be published on the CPPP. Furthermore, various government departments/ ministries/ statutory corporations including, among others, the MNRE, SECI, Ministry of Health and Family Welfare, the National Thermal Power Corporation Limited, provide a separate section on their official websites for information on procurement opportunities, including information on renewable energy, green hydrogen, electronic vehicles, healthcare etc.

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity?

Typically, in capital‑intensive large‑scale projects and public‑private partnership (PPP) projects, procuring authorities require bidders to incorporate an SPV company to carry out the scope of work under the bid, within a specified time period of issuance of the letter of award. The rationale behind procuring entities preferring incorporation of SPVs is as follows: (i) ring‑fencing of pre‑existing liabilities of the successful bidder; (ii) auditing of company accounts is straightforward; and (iii) enabling lenders financing such projects to recover money directly from the SPV, without diluting priority of charge due to bidder's other lenders.

Additionally, to ensure due performance of the project by the selected bidder, the tender documents requiring formation of an SPV, may also require: (a) the consortium members to hold a minimum percentage of equity shareholding in the SPV for a specified time period; or (b) the bidder's parent company to submit an unconditional and irrevocable guarantee to ensure that the bidder fulfils its responsibilities under the contract, i.e. performance of obligations, discharge of liabilities and compliance with all the provisions of the contract, particularly in cases where the bidder is relying on the credentials of its parent company to participate in the bidding process.

Is there any requirement for 'local content'?

Local content requirements:

Rule 153 (iii) of GFR allows the Government to mandate procurement of goods and services from any specific category of bidders or select any local supplier for reasons of promoting growth in any specific area or 'Make in India' projects.

As a part of the 'Make in India' policy of the GoI, the Department for Promotion of Industry and Internal Trade (DPIIT) issued the Public Procurement (Preference to Make in India) Order on 15 June 2017, read with DPIIT orders dated 28 May 2018, 16 September 2020 and 4 March 2021 (DPIIT Order 2017), to promote manufacturing and production of goods and services in India and to increase participation of local employees in services.

Through DPIIT Order 2017, the GoI seeks to increase the local content through public procurement by granting purchase preference to local suppliers and service providers.

Based on the percentage of minimum local content of the goods and/or services prescribed under the DPIIT Order 2017, read with the requirements published by the nodal ministry/ department for supply of goods/ services, the bidder qualifies as either a: (i) Class‑I local supplier; or (ii) Class‑II local supplier; or (iii) non‑local supplier. Unless a higher percentage of minimum local content is prescribed by the nodal ministry/ department, the minimum local content for Class‑I local suppliers will be 50% and for Class‑II local suppliers will be 20%. Unless any specific instructions are given by the nodal ministry, purchase preference will be given to a Class‑I local supplier.

Tenders in India often require bidders to submit a 'certification for local content', whereby the bidder and its statutory auditor/ cost auditor are required to certify whether the bidder qualifies under (i), (ii) or (iii) as specified in the paragraph above. The format of the 'certification for local content' varies across bids since the nodal ministry/ department procuring specific goods/ services has the discretion to set the format of such certificate.

Employment quotas relating to the local workforce:

Since 'labour' is a subject in the concurrent list of the Constitution of India, acts/ rules/ regulations are formulated by both the Central and State governments, therefore the employment quotas etc prescribed by State governments vary across States. Some examples are as follows:

State of Andhra Pradesh: As per the Andhra Pradesh Employment of Local Candidates in the Industries/ Factories Act 2019, any industry/ factory/ joint venture and project taken up, including under PPP mode, will be required to engage not less than 75% of the employment with local candidates.

State of Karnataka: The Karnataka Industrial Employment (Standing Orders) (Amendment) Rules, 2019 was issued by the Labour Department, Government of Karnataka to facilitate priority/ preferential engagement of the ethnic group of people known as Kannadigas^[4] in the State of Karnataka, India.

Further, the 'Dr. Sarojini Mahishi Guidelines on Employment of Kannadigas' provides for recommendations in relation to prioritising job opportunities for Kannadigas in Karnataka. While these guidelines are in the nature of recommendations for employment preferences, there are instances where the successful bidder/ service provider was required to adhere to the employment quota specified in these guidelines under the contract.

State of Maharashtra: The State Government of Maharashtra has a policy in place to ensure that local persons of the State get gainful employment arising from the growth in industrial activity. Accordingly, all industrial enterprises are expected to ensure that 50% of all supervisory staff are local persons, 80% of all employees (including supervisory staff) are local persons, and the head of human resources/ person in‑charge of recruitment has knowledge of Marathi.

The Legal Procurement Framework

What is the applicable procurement legislation?

Applicable Procurement Legislation:

There is no specific legislation that governs public procurement contracts in India. The legislative framework governing public procurement mainly comprises orders, rules, guidelines and manuals prescribed by various government bodies (such as DoE). These primarily include: (i) GFR along with amendments - the GFR also allows government ministries and departments to issue instructions on specific aspects of the public procurement policies; (ii) Delegation of Financial Power Rules 1978 along with its amendments (DFPR); (iii) guidelines in relation to tendering procedure for public procurement issued by the Central Vigilance Committee (CVC) from time to time; and (iv) Manual for Procurement of Goods 2017; Manual for Procurement of Works 2019; and Manual for Procurement of Consultancy and Other Services 2017 (collectively, Manuals) along with their amendments.

Additionally, there are various applicable sector‑specific procedures such as Defence Procurement Manual 2009, Defence Acquisition Procedure 2020 and Defence Works Procedure 2020 for procurement by the Department of Defence, GoI and Electricity Act 2003 (which provides for determination of tariffs through bidding process^[5]).

Anti‑corruption policies/guidelines:

The tender guidelines issued by CVC, as mentioned above, have been framed to ensure transparency in public procurement and avoid corrupt practices. In addition to CVC guidelines, other legislations including the Prevention of Corruption Act 1988 and the Indian Penal Code 1860 have been enacted to prevent corruption in procurement processes.

In addition to the above, several states such as Tamil Nadu, Karnataka, Rajasthan, Andhra Pradesh, Punjab have enacted specific legislations governing public procurement procedure as well as transparency in procurement process. These include Tamil Nadu Transparency in Tenders Act 1988, Karnataka Transparency in Public Procurement Act 1999, Rajasthan Transparency in Public Procurement Act 2012, Andhra Pradesh Infrastructure Development Enabling Act 2001 etc.

Separately, it is pertinent to note that under the GFR, procuring entities are entitled to debar bidders or their successors from participating in procurement process for a certain period in case of breach of integrity or non‑compliance of aforesaid guidelines/ rules or bid conditions under the tender documents.^[6]

Restrictions on procurement from certain countries:

Restriction on procurement from countries sharing land borders with India

The Ministry of Finance through order dated 23 July 2020 (Order) amended the GFR to insert Rule 144 (xi) (Fundamental Principles of Public Buying), which states that the DoE may impose restrictions, including prior registration and/or screening, on procurement from bidders from certain countries.

Pursuant to the aforesaid amendment, except for certain countries where the GoI has extended lines of credit or is engaged in development projects, there are certain restrictions on bidders from countries sharing a land border with India, including China, Pakistan, Bhutan, Myanmar, Afghanistan, Nepal and Bangladesh. Bidders from such countries are required to mandatorily register with the Registration Committee constituted by the DPIIT (Competent Authority) to qualify for bidding in any procurement of goods, services or works (including turnkey projects) in India. Prior political and security clearance from the Ministry of External Affairs and Ministry of Home Affairs will be required for registration with the Competent Authority.

The Order is applicable to all Central Government Ministries/ Departments, attached and subordinate bodies and autonomous bodies, and to PPP projects where the Government/ public sector enterprises/ undertakings provide financial support.

Reciprocity principle:

Pursuant to the GoI's 'Make in India' initiative, DPIIT issued an order dated 16 September 2020 (DPIIT Order 2020) which, among others, disallows participation of entities of foreign countries in Indian government procurement in reciprocation of Indian companies being disallowed to participate in such entities' government procurement. Through the DPIIT Order 2020, Central/ State Governments have been directed to incorporate reciprocity provisions in their respective tenders.

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

Agreement on Government Procurement published by WTO (GPA):

India has not acceded to or ratified the WTO GPA. However, India was accorded an 'observer' status by the Committee on Government Procurement on 10 February 2010, enabling India to follow discussions on matters of direct interest to India.

Other bilateral trade agreements with government procurement commitments:

Comprehensive Economic Partnership Agreement (CEPA)

In the first instance of incorporation of 'government procurement' provisions in a bilateral agreement, the CEPA was recently executed between India and UAE on 18 February 2022 (and came into force from 1 May 2022). Under CEPA, UAE based companies will be treated on the same footing as domestic companies for government procurement contracts with financial threshold of ~USD 27,470,414 (Special Drawing Right (SDR) 20,000,000) and above).

CEPA set outs 34 procuring entities (ie, Ministries and Departments), including MNRE, Ministry of Power and Ministry of Housing and Urban Affairs, for which government procurement will be available to the UAE based companies. However, Chapter 10 of CEPA (Government Procurement) will not be applicable on the following, among others: (a) all the subordinate entities of the listed Ministries and Departments; (b) procurements related to construction projects or any infrastructure projects; (c) procurements related to the health care sector; and (d) procurements conducted under the DPIIT Order 2017

Free Trade Agreement executed between India and Japan (FTA)

The FTA provides that each party must exchange information with the other party in relation to their respective laws, regulations, policies and practices, along with reforms thereof, on government procurement. It also entails that Japan be granted an opportunity for negotiations with India for any advantageous treatment in government procurement, on reciprocal basis, if the same is offered by India to any third country. Considering that India has entered into a bilateral agreement with a third country (ie UAE), as mentioned in the paragraph above, which includes provisions on government procurement, it is possible that negotiations under FTA may commence on similar lines with Japan in the future.

Economic Cooperation and Trade Agreement (ECTA)

ECTA recently came into effect on 12 December 2022. The negotiation subcommittee formed under the ECTA is required to commence negotiations within 75 days of execution of ECTA, on areas including a chapter on government procurement, to transform the ECTA into a comprehensive economic cooperation agreement. The negotiations for such Australia-India Comprehensive Economic Cooperation Agreement (AI-CECA) are currently underway. Hence, there are prospects of mutual government procurement commitments being made under this agreement.

If so, how do these international trade agreements interact with the domestic procurement legislation?

The interaction between an international treaty and domestic law is determined by the country's constitutional provisions.

Drafting and execution of international treaties is an executive act (as opposed to enacting a law, which is a legislative act), wherein the treaty is concluded with the approval of the Union Cabinet and is not placed before the Parliament for discussion and approval. However, where the performance of treaty obligations entails alteration of the existing domestic law or requires new enactment, it would require legislative action.

Pursuant to Article 246 (read with entries 13 and 14 of the Union List^[7]) and Article 253 of the Constitution of India, the Indian Parliament is entitled to make laws for implementing international treaties, agreements and conventions.

Accordingly, the Parliament is entitled to formulate laws to implement CEPA, in addition to the current domestic legislations in India. CEPA further states that each party is obliged to take adequate measures for ensuring that the provisions of CEPA are observed by the regional and local authorities/ governments.

It may be noted that there are specific provisions in CEPA which allow parties to apply preferential procurement policies for its Micro, Small and Medium Enterprises (MSME) as per domestic laws and regulations, thereby protecting MSMEs. Also, it appears that the Indian government, while executing CEPA, was cognizant of the sensitivities of certain sectors which were excluded from government procurement under CEPA, such as procurements under DPIIT Order 2017, procurements in the construction/ infrastructure/ healthcare sectors etc.

What types of procuring entity need to comply with the procurement legislation?

The term 'Procuring Entity' has been defined under various guidelines and orders to mean any Ministry or Department of the Central Government or a unit, attached/ subordinate office thereof, to which powers of procurement have been delegated, including government companies (as defined under the Companies Act, 2013), and other government (including autonomous) bodies and agencies.^[8]

Additionally, the Manuals are to be complied with in cases where: (i) the procurement process is outsourced; or (ii) procurement process is being bundled with other contractual arrangements; or (iii) procurement is being conducted by another entity on behalf of the Procuring Entity (ie, procurement support agency or procurement agents).^[9]

Which types of contracts are covered?

Procuring entities usually enter into contracts for purchase of items/ equipment, services/ works, and consultancy.

While there are no strict classifications of the types of contracts that procuring entities enter into, GFR stipulates certain forms of contracts used in public procurement based on value, as follows^[10]:

• Purchase orders containing basic terms – applicable for purchases of value up to ~USD 3,058 (INR 2,50,000) (issued at the discretion of the Ministry/Department);

• Letter of acceptance for works/ purchase contracts that serve as binding contracts – applicable for purchases between ~USD 1,223 (INR 1,00,000) to ~USD 12,231 (INR 10,00,000) where tender documents include the general conditions of contract, special conditions of contract and scope of work;^[11] and

• Contract document with all necessary clauses - applicable for works/ purchases with estimated value of ~USD 12,231 (INR 10,00,000) or above.^[12]

A more detailed classification of the types of contracts has been set‑out in the Manuals,^[13] on the basis of which bids are called and evaluated in government procurement:

Manual for procurement of goods

Rate contract/ framework agreement executed between the purchaser and supplier for supply of goods on prices which may either be predetermined or determined at the stage of actual procurement through competition or a predefined process.

Manual for procurement of works:

• Lump sum (Fixed Price) Contract: Under such contracts, contractors quote a lump sum fixed price for completing the works. However, the GFR does not recommend execution of such lump sum contracts, except in circumstances of absolute necessity and with adequate safeguards for the interest of the Government.^[14]

• Item Rate (Unit Rate) Contract: Contractors quote rates for each individual items of work, based on the Bill of Quantities (BOQ), provided by the procuring entity in the tender documents, and payments are made as per the unit rate set out in the contract.

• Percentage Rate Contract: Contractors quote rates as an overall percentage above or below the total estimated project cost - typically used when the work does not involve major design process and simple drawings for execution are sufficient (for instance, levelling and development works such as water supply).

• Piece Work Contract: Used for projects where it is essential to start the work in anticipation of formal acceptance of the contract and may be terminated when a regular contract is executed. The rates under this contract are usually quoted for a year and involve drawing of a rough draft of work and timeline within which the work is required to be completed.

• Engineering, Procurement and Construction (EPC) Contracts: These are construction contracts where the EPC contractor is responsible for design, procurement, construction, commissioning and handover of a project. While the procuring entity bears risks pertaining to delay in obtaining clearances and approvals from the relevant departments, the contractor is assigned all weather/ commercial/ technical risks pertaining to the project.

• Public Private Partnership (PPP): involves an arrangement between a government/ government owned entity (Authority) and a private sector entity (Concessionaire), which is chosen basis competitive bidding, for management or creation of public assets and/ or services. Such arrangements entail allocation of risk between parties and the Concessionaire receives payments based on its performance (conforming to pre‑determined performance standards measurable by the Authority).

Manual for procurement of consultancy and other services:

• Time based (Retainership) Contract: This involves payments on agreed hourly/ daily/ weekly/ monthly rates for staff (retained for specified duration) (including salary, special allowances, etc) and on reimbursable items using actual expenses and/ or agreed unit prices. This form of contract is mostly used in the event a lump‑sum contract is unfeasible due to difficulties in defining the scope and the length of services.

• Retainer and Success (Contingency) Fee Contract: This form of contract is generally used in privatisation operations and assignments related to organisational restructuring, whereby, the remuneration of the consultant includes a retainer fee and percentage based payment.

• Indefinite Delivery Contract: This type of contract is used when the procuring entity requires specialised services, the extent and timing of which cannot be determined in advance. The payments under this contract are made on the basis of the time/ quantum of services rendered/ utilised on the agreed unit rates.

• As per the GFR, the terms of a contract (including scope/ specification) once executed should not be materially altered. However, in the event such material variation is unavoidable, specific prior approval should be obtained from the authority competent to approve the revised financial and other commitments.^[15]

Financial thresholds:

The DFPR, as amended on 16 September 2003, states that departments of the Central Government are entitled to sanction expenditures for purchases and execution of contracts (including contracts for technical collaboration or consultancy services) in accordance with the following financial thresholds, exceeding which would require prior approval of the Minister in‑charge of the concerned department:

• For open/ limited tender contracts - upto ~USD 2,446, 240 (INR 20,00,00,000);

• For negotiated or single tender or proprietary contracts – upto ~USD 611, 592 (INR 5,00,00,000); and

• For agreements for technical collaboration and consultancy services - upto ~USD 244, 637 (INR 2,00,00,000).

Additionally, the specific powers of Department of Commerce to approve rate contracts was further enhanced up to the value of ~USD 12, 230, 113 (INR 100,00,00,000).

The aforesaid financial thresholds differ in case the contract/ purchase/ consultancy is inseparably linked with proposals for Standing Finance Committee or Committee on Non‑Plan Expenditure, or Expenditure Finance Committee.

In addition to the above, through notification dated 29 November 2005, GoI set‑out the following for Central Sector PPP projects with capital cost:

• more than ~USD 12, 230, 113^[16] (INR 100,00,00,000): appraisals by Public Private Partnership Appraisal Committee (PPPAC); and

• less than the abovementioned threshold: clearance by the Expenditure Finance Committee (EFC)/ Standing Finance Committee (SFC), instead of appraisals by PPPAC

Subsequently, the Cabinet Committee on Economic Affairs (CCEA) notified^[17] that appraisals of PPP projects with capital cost:

• more than ~USD 12, 230, 113 (INR 100,00,00,000) but less than ~USD 30, 571, 743 (INR 250,00,00,000) for all sectors will be granted by a committee comprising of Department of Economic Affairs and the relevant ministry/ department sponsoring the concerned project; and

• equal to or more than ~USD 30, 571, 743 (INR 250,00,00,000) but less than ~USD 61, 143, 803 (INR 500,00,00,000) for National Highway Development Project and major ports will be granted by a committee comprising of Department of Economic Affairs and the Ministry of Road, Transport and Highway (MoRTH) and Ministry of Shipping (MoS), as applicable.

However, the financial thresholds for national highway and ports projects were subsequently amended as follows:

• National highway projects – projects with civil construction cost of (a) upto ~USD 122, 286, 918 (INR 1000,00,00,000) would require appraisal by the SFC chaired by Secretary of MoRTH and approval from MoRTH; and (b) more than ~USD 122, 286, 918 (INR 1000,00,00,000), would require appraisal by the PPPAC and approval from CCEA.^[18]

• Port projects – with project costs (a) less than ~USD 3,057, 692 (INR 25,00,00,000) would require the appraisal and approval from MoS; (b) equal to or more than USD 3,057, 692 (INR 25,00,00,000) but less than ~USD 122, 307, 703 (INR 1000,00,00,000) would require appraisal by the SFC chaired by Secretary of MoS and approval from the Minister (Shipping); and (c) equal to or more than ~USD 122, 307, 703 (INR 1000,00,00,000) would require appraisal by PPPAC and approval from CCEA.

Apart from the Central Sector PPP projects, most state governments have devised their own mechanisms and process for obtaining the necessary administrative approvals for State level PPP projects.

Are there any exemptions to competitive bidding?

In the context of exemptions to competitive bidding, the Supreme Court of India through its judgement in Nagar Nigam, Meerut vs. Al Faheem Meat Exports Pvt. Ltd and Ors. (2006) 13 SCC 382 held that in rare and exceptional cases including, among others, (i) natural calamities or emergencies declared by the Government; or (ii) where the procurement is possible from a single source only; or (iii) where the supplier has exclusive rights over goods and no substitute exists, the general rule of inviting bids through public auction or public tender may be exempted.

Additionally, Rule 194 of the GFR appears to have incorporated the findings of the aforementioned judgement, and permits 'Single Source Selection/ Consultancy by Nomination' under exceptional circumstances as follows:

• tasks that represent a natural continuation of previous work carried out by the firm;

• in case of an emergency situation, natural disasters, and/ or where time is of the essence in completion of the assignment; and

• for assignments which may involve use of proprietary techniques or where only one consultant has requisite expertise.

The GFR also states that single‑source selection is possible where adequate justification exists, in the overall interest of the ministry/ department, subject to prior approval of the competent authority and recording of such justification. However, the procuring entity is required to ensure that the prices are reasonable and consistent with market rates for tasks of a similar nature, and the required consultancy services are not split into smaller sized procurement.

Are there any proposals to amend the applicable procurement legislation?

While a draft Public Procurement Bill was introduced in the Lok Sabha in May 2012 (Bill) envisaging a framework to regulate the procurement of goods and services costing over USD 61, 149 (INR 50,00,000) by the central ministries, departments, public sector enterprises, and autonomous and statutory bodies, the Bill lapsed in 2014.

Presently, there are no active proposals to amend the current procurement legislation in India.

Key procurement resources

• Procurement portal for Central government:

• CPPP e‑publishing and e‑procurement; and

• procurement portal developed by NIC

• Procurement portal for public sector enterprises

• Procurement portal for States and Union Territories

• GeM, an online government marketplace for common use goods and services. The purpose of the GeM portal is direct online purchases of common goods and services by government buyers.

Country Contacts

Kaoru Umino
Partner, DLA Piper

Edward Mears
Senior Associate, DLA Piper

Beelian Tay
Of Counsel, DLA Piper

Shingo Okada
Associate, DLA Piper

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of 'green' contracting opportunities?

Government tenders are posted on Japan's Official Gazette (commonly referred to as the "kanpo" or the "kenpo" or its equivalent for municipal and local government entities).

Government tenders posted on the Official Gazette may also be found on the following:

• the Procurement Portal (choutatsu portal) by using the search function;

• the websites of the central government entities and their agencies;

• the websites of the local governments and their agencies;

• the website of the Japan External Trade Organization (JETRO) for information in English on the main procurement opportunities from central government entities, as well as from government entities in Japan's prefectures, ordinance-designated cities, core cities and special cities.

There is no separate source for government announcements of "green" contracting opportunities at this stage.

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity?

Generally, there are no requirements for bidders to be established in Japan in order to bid for or execute a contract with a procuring entity. Therefore, foreign companies can participate in bids without establishing a subsidiary or other formal presence in Japan.

However, it may be helpful to establish an office in Japan (or have an agent in Japan) in order to conduct activities that may facilitate easier access to Japan's procurement market.  Further, a non-Japanese company having no formal presence in Japan may encounter difficulties (i) when preparing the documents needed to obtain the SQT (defined below) as they must be in the Japanese language or (ii) obtaining full and complete information on the bids (e.g., explanatory meetings may be in the Japanese language only and some government offices may not be able to communicate in English).

Bids are open to qualified suppliers and this requirement applies to all bidders, whether Japanese or non-Japanese.  If a bidder applies for the 'Single Qualification for Tender' (SQT), which is valid for all Japanese ministries and agencies, the bidder will be able to participate in bids for projects promoted by all Japanese ministries and agencies, as well as those of independent administrative agencies. Please note that the SQT is valid only for a certain term and must be renewed periodically.

Please note that in some cases (e.g. projects that implicate national security or other military related industries), due to the nature or purpose of the project, non-Japanese companies may be excluded from participation in the bid.

Is there any requirement for 'local content'?

Any requirement for "local content" depends on the specific requirements of each project. Any such "local content" requirement would be above and in addition to the requirements to obtain the SQT. Those requirements are typically set forth on the public bid document published in the Official Gazette or the Procurement Portal.

The Legal Procurement Framework

What is the applicable procurement legislation?

The following pieces of legislation are most relevant to procurement opportunities administered by the Government of Japan (note: the links below are available in the Japanese language only):

• Accounts Law

• Cabinet Order concerning the Budget, Auditing and Accounting

• Rules for Handling Contract Administration

• Special Cabinet Order for Procurement Process

• Special Ministerial Order for Procurement Process

In addition, each ministry and agency has established detailed contract regulations and qualification screening rules that set out the detailed rules for procurement processes based on the above legislation.

As for procurement handled by local governments, the most relevant pieces of legislation are the Local Autonomy Act, the Order for Enforcement of the Local Autonomy Act and the ordinances established by each local government.

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

Japan has ratified the WTO Government Procurement Agreement．Also, Japan has bilateral trade agreements with Government Procurement commitments with Chile, Indonesia, Mexico, Philippines, Singapore, Switzerland and Thailand.

If so, how do these international trade agreements interact with the domestic procurement legislation?

According to Japan's Ministry of Foreign Affairs, in addition to the procurement procedures under Japan's Accounts Law and other regulations described above, Japan has developed voluntary measures that are more sophisticated than the procedures under the WTO Agreement and other international commitments. For example, under the WTO Agreement, tenders published by independent administrative agencies for the procurement of goods and services (excluding public works and construction services) are subject to procurement measures if the contract is of 130,000 SDRs or more.

On the other hand, under these voluntary measures, procurement contracts of 100,000 SDRs or more are subject to the provisions of the 'Amended WTO Agreement' and other international commitments. In addition, the bidding period (which is set at 40 days or longer under the WTO Agreement) is set at 50 days or longer under Japan's voluntary measures.

What types of procuring entity need to comply with the procurement legislation?

Central ministries and agencies, local governments, and independent administrative agencies and similar entities should comply with Japan's procurement-related regulations and legislation.

Also, any business operator must comply with the procurement processes that are developed by the foregoing entities based on Japan's procurement-related regulations and legislation.

Which types of contracts are covered?

Covered procurement contracts include those involving the provision of goods, construction services, technology services, and engineering services.

According to Japan's Ministry of Foreign Affairs, the financial thresholds for the period from 1 April 2022 to 31 March 2024 have been defined here (Japanese only). For example, in the case of contracts involving the provision of goods to central ministries and agencies, the financial threshold is 100,000 SDRs under both the WTO Agreement and Japan's voluntary measures. Regarding the provision of goods to local governments, the financial threshold is 200,000 SDRs under the WTO Agreement (Japan's voluntary measure will not apply to those contracts).

Are there any exemptions to competitive bidding?

Yes. No-bid contracts are permitted under Japan's procurement regulations and legislation. For example, the following types of procurement can be concluded through no-bid contracts:

• when the nature or purpose of the contract does not permit competition;

• when it is deemed disadvantageous to submit the contract to competition;

• when the estimated price of the procurement is small; and

• other cases as specified by the Cabinet Order concerning the Budget, Auditing and Accounting Art. 99 such as procurement relating to national actions that must remain secret.

Are there any proposals to amend the applicable procurement legislation?

Not currently.

Key procurement resources

• choutatsu portal

• SQT application website and procurement information search function

• Tokyo Metropolitan Government, and websites managed by each local government (too many to list here)

• Ministry of Foreign Affairs (English available)

• Ministry of Finance

Country Contacts

Shaimerden Chikanayev
Partner, GRATA International

Lola Abdukhalykova
Counsel, GRATA International

Government Procurement

Where are government tenders advertised? 

Government tenders are advertised on:

• the website of public procurement under the Public Procurement Law; and

• the website of the Kazakhstan Public-Private Partnership (“PPP”) Center in relation to public-private partnership and concession projects under the PPP Law and Concession Law.

In addition, tenders can be announced on websites of public authorities depending on their competence.  Such as:

• the website of public procurement of the Sovereign Welfare Fund;

• the website developed by the National Entrepreneurship Chamber to consolidate the information about tenders of several categories of entities; and

• the website for government announcements of ‘green’ contracting opportunities.

Information on the websites is mainly available in Russian and Kazakh.

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity? 
There is no requirement for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity.

However as public procurement (not PPPs) is conducted in electronic form, bidders must have a “digital electronic signature” which is issued by local tax authorities in order to participate in a tender.

Is there any requirement for ‘local content’?
There is no statutory local content requirement.

The Legal Procurement Framework

What is the applicable procurement legislation?

• Civil Code (General Part) of the Republic of Kazakhstan dated 27 December 1994; Civil Code (Special Part) of the Republic of Kazakhstan dated 1 July 1999, No. 409

• Budget Code of the Republic of Kazakhstan dated 4 December 2008, No. 95-IV

• Entrepreneur Code of the Republic of Kazakhstan dated 29 October 2015, No. 375-V

• Code of the Republic of Kazakhstan “On Taxes and Other Obligatory Payments into the Budget (Tax Code)” dated 25 December 2017, No. 120-VI 

• The Law of the Republic of Kazakhstan “On Public Procurement” dated 4 December 2015, No. 434-V ЗРК (the Public Procurement Law).

• The Law of the Republic of Kazakhstan “On Procurement by Certain Quasi-Public Sector Entities” dated 8 June 2021, No. 47-VII (the Quasi-State Public Procurement Law".

• The Law of the Republic of Kazakhstan “On Public Private Partnership” dated 31 October 2015, No. 379-V (the PPP Law).

• The Law of the Republic of Kazakhstan “On Concessions” dated 7 July 2006, No. 167 (the Concession Law).

• The Decree of the Minister of Finance of Kazakhstan dated 11 December 2015, No. 648 “On approval of the Rules of the conduct of public procurement” 

• The Decree of the Minister of Finance of Kazakhstan dated 30 November 2021, No. 1253 “On approval of the Rules of the conduct of procurement by certain subject of quasi-state sector, except for the Sovereign Welfare Fund and organizations of the Sovereign Welfare Fund” .

• The Decree of the Management Board of the National Bank of the Republic of Kazakhstan dated 27 August 2018, No. 192 “On approval of the Rules of procurement of goods, works and services by the National Bank of the Republic of Kazakhstan, its departments, organizations, which are included in the structure of the National Bank of the Republic of Kazakhstan and the legal entities, 50 or more per cent of the voting shares (participatory interests) of which belong to the National Bank of the Republic of Kazakhstan or are in trust management of the National Bank of the Republic of Kazakhstan, and legal entities affiliated with them”

• The Order of the Minister of Defense of the Republic of Kazakhstan dated 18 May 2022, No. 312 “On approval of the Rules for the interaction of structural units of the Ministry of Defense, the General Staff and the Armed Forces of the Republic of Kazakhstan in the formation of the state defense order and public procurement in the interests of the Ministry of Defense of the Republic of Kazakhstan”

• The Order of the Minister of Finance of the Republic of Kazakhstan dated 9 April 2021, No. 320 “On approval of the Rules for public procurement in the implementation of pilot projects for the construction of facilities in the healthcare, education and housing sectors, which are not technically complex, the construction of which is expected according to standard projects, standard design solutions and repeated projects” 

• The Decree of the Government of the Republic of Kazakhstan dated 4 June 2021, No. 375 “On approval of the Rules for organising and conducting procurement of medicines, medical devices and specialized medical products within the guaranteed volume of free medical care and (or) in the system of compulsory social health insurance, pharmaceutical services and invalidating some decisions of the Government of the Republic of Kazakhstan” 

• The Order of the acting Minister of National Economy of the Republic of Kazakhstan dated 25 November 2015 No. 725 “On certain issues of planning and implementing projects of public-private partnership” 

• The Order of the Minister of National Economy of the Republic of Kazakhstan dated 22 December 2014 No. 157 “On certain issues of planning and implementing concession projects” 

• The Order of the Minister of Healthcare of the Republic of Kazakhstan dated 31 December 2019 No. ҚР ДСМ-155 “On approval of the Rules for determining a private partner and concluding a public-private partnership agreement in the field of healthcare”.

• The Order of the Minister of National Economy of the Republic of Kazakhstan dated 30 November 2021 No. 157 “On certain issues of planning and implementing concession projects” 

• The Law of the Republic of Kazakhstan “On State Property” dated 1 March 2011, No. 413-IV ЗРК 

• The Law of the Republic of Kazakhstan "On Sovereign Welfare Fund” dated 1 February 2012, No. 550-IV ЗРК 

• Code of the Republic of Kazakhstan “On Public Health and Healthcare System” dated 7 July 2020, No. 360-VI 

• The Law of the Republic of Kazakhstan “On Housing Relations” dated 16 April 1997, No. 94 

• The Law of the Republic of Kazakhstan “On Automobile Roads” dated 17 July 2001, No. 245 

• The Law of the Republic of Kazakhstan “On Railway Transport” dated 8 December 2001, No. 266 

• The Law of the Republic of Kazakhstan “On Electric Power Industry” dated 9 July 2004, No. 588 

• The Law of the Republic of Kazakhstan “On Education” dated 27 July 2007, No. 319-III 

• The Law of the Republic of Kazakhstan “On Gas and Gas Supply” dated 9 January 2012, No. 532-IV 

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

Neither the EU procurement directives nor the GPA apply in Kazakhstan. As a WTO member, however, Kazakhstan has undertaken a commitment, in its WTO accession protocols, to initiate accession to the GPA, and from 19 October 2016, Kazakhstan has observer status on the GPA Committee.

Kazakhstan is a party to the Treaty on the Eurasian Economic Union dated 29 May 2014 (the Treaty), which establishes provision of the so-called “national regime” in the sphere of public procurement for the states-parties to the Treaty on Eurasian Economic Union (see Chapter XXII of the Treaty).

If so, how do these international trade agreements interact with the domestic procurement legislation?

According to Article 3.2 of the Public Procurement Law and Article 2.2 of the PPP Law, if an international treaty ratified by the Republic of Kazakhstan stipulates rules other than those stipulated in the local legislation, the procurement rules of the international treaty shall be applied.

What types of procuring entity need to comply with the procurement legislation?

The following entities must comply with the procurement legislation (Public Procurement Law or special procurement legislation depending on the type of the entity):

• state authorities (государственные органы) − e.g. Government of Kazakhstan or local executive authority (Akimat);

• state agencies (государственные учреждения) − e.g. the Ministry of Internal Affairs, in its capacity as a state agency;

• governmental enterprises (государственные предприятия); 

• legal entities, 50 or more per cent of the voting shares (participatory interests) of which belong to the state, and legal entities affiliated with them (e.g. municipal companies per cent 100% owned by regions or cities represented by respective Akimats);

except for governmental enterprises as property complexes, legal entities, fifty or more percent of the voting shares (stakes in the authorized capital) of which belong to the state, and legal entities affiliated with them, transferred to trust management of individuals or non-state legal entities with the right of subsequent redemption;

• national management holdings; national holdings; national management companies; national companies and legal entities affiliated with them;

• National Bank (the NBK), its departments, organizations, which are included in the structure of the NBK and the legal entities 50 or more per cent of the voting shares (participatory interests) of which belong to the NBK or are in trust management of the NBK, and legal entities affiliated with them.

Which types of contracts are covered?

The procurement legislation covers civil contracts between a "purchaser" (one of the entities listed above) and a "supplier" (that can be, generally, a natural person conducting entrepreneurial activity, a local or foreign legal entity and even a consortium) in relation to procurement on a fee-paying basis of "Goods", "Works" and/or "Services" (as these terms are defined in article 2 of the Public Procurement Law), except for those which are expressly excluded, irrespective of the amount of the public procurement contract.

Are there any exemptions to competitive bidding?

The list of exclusions from the procurement legislation is limited and exhaustive, and provided in article 1 of the Public Procurement Law and article 1 of the Quasi-State Public Procurement Law (e.g. purchase of services related to business-trip expenses or purchase within the implementation of investment contracts which are financed by international organizations where Kazakhstan participates).

Article 39 of the Public Procurement Law provides for an exhaustive list of cases when public procurement can be carried out by way of “single source procurement”: e.g. purchase of financial services or purchase of goods from a legal entity which entered into an “agreement on investments” with the authorised body.

In respect of PPPs, according to Article 44 of the PPP Law, direct award is only possible by decision of the Government of the Republic of Kazakhstan for implementation of PPP projects aimed at creation and operation of unique facilities providing for transfer of technologies.

Direct award of concessions is not allowed.

Are there any proposals to amend the applicable procurement legislation?
No 

Key procurement resources

See list of legislation above.

Country Contact

Nurlan Kyshtobayev,
Partner, GRATA International

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of ‘green’ contracting opportunities?

Government tenders are advertised in the Official Portal of Public Procurement.

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity?

A bidder can be any legal entity or individual participating in procurement procedures for the supply of goods, works and services.

There are no requirements to establish an SPV for a specific project, set up a corporate subsidiary in the jurisdiction etc.

Is there any requirement for ‘local content’?

Employment of foreign nationals is permitted on the basis of a work visa and work permit. The work permit and work visa are issued on the basis of the employer’s application and are valid for one year.

On the basis of the treaty on accession to the EAEU, duly ratified by the Kyrgyz Republic, citizens of the EAEU member states are exempted from obtaining a work permit in the Kyrgyz Republic.

The Legal Procurement Framework

What is the applicable procurement legislation?

• Law of the Kyrgyz Republic of April 14, 2022 No. 27 "On Public Procurement" 

• Constitution of the Kyrgyz Republic dated May 5, 2021 (adopted by referendum (popular vote) on April 11, 2021 

• Civil Code of the Kyrgyz Republic Part I of May 8, 1996 No. 15 and Part II of January 5, 1998 No. 1

• Law of the Kyrgyz Republic dated April 24, 2019 No. 52 "On customs regulation"

• Law of the Kyrgyz Republic dated August 11, 2021 No. 98 "On public-private partnership"

• Law of the Kyrgyz Republic dated March 6, 1992 No. 850-XII "On concessions and foreign concession enterprises in the Republic of Kyrgyzstan"

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?
The Kyrgyz Republic has not ratified the WTO Government Procurement Agreement (GPA).

Meanwhile, the Kyrgyz Republic is a party to number of bilateral trade treaties which directly or indirectly refer to public procurement.

If so, how do these international trade agreements interact with the domestic procurement legislation?

The public procurement legislation of the Kyrgyz Republic settles the priority of international treaties over national legislation.

What types of procuring entity need to comply with the procurement legislation?
State bodies, local self-government bodies, state and municipal institutions, funds and other legal entities created using state funds, funds of state bodies or local self-government bodies, are all obliged to comply with the procurement legislation.

Procuring entities which conduct the following procurements are not required to comply with the procurement legislation of the Kyrgyz Republic:

• Procurements related to the protection of state secrets in accordance with the legislation on the protection of state secrets. The procedure for organizing such public procurements is determined by the Cabinet of Minister:

• Procurements carried out by the National Bank of the Kyrgyz Republic. The National Bank of the Kyrgyz Republic makes purchases to meet administrative and economic needs, perform construction work and refurbishment in accordance with its internal rules for procurement. Internal procurement rules are approved by the National Bank of the Kyrgyz Republic and should not contradict the purpose and principles of this Law;

• Procurements at the expense of international funds established to promote economic cooperation between the Kyrgyz Republic and other states;

• Procurements associated with hemodialysis services for patients with chronic renal failure of the fifth stage. The procedure for organizing and making such purchases is determined by the Cabinet of Ministers;

• Procurement carried out by state and municipal enterprises; joint-stock companies, where 50 percent or more of the share in the authorized capital belongs to the state or their subsidiaries.

Which types of contracts are covered?

The public procurement legislation does not establish any threshold in relation to public procurement contracts.

It governs any acquisition by the procuring entity of goods, works, services and consulting services by statutory established methods, and which are financed in whole or in part by public funds.

Are there any exemptions to competitive bidding?

The single source method is a public procurement procedure in which the procuring entity/agent signs a contract without publishing a public procurement notice, thereby foregoing any open competition. This method is applicable in the following cases:

• additional contracts to purchase goods not exceeding 10 percent of the value of the previously concluded contract with the same supplier while maintaining the price and technical specific characteristics of the former contract;

• implementation of additional construction work or services not exceeding 10 percent of the value of the previously concluded contract (if in the course of the work it becomes necessary to increase the types of work specified in the work sheet, or additional work occurs that could not be determined when drawing up the bill of quantities) and the involvement of the same supplier will ensure the economy and compatibility of results;

• purchases through the electronic catalog of goods, works and services for each item of expenditure during the year up to 50,000 soms, regardless of the amount pledged in the item of expenditure in accordance with the approved budget or cost estimate;

• the acquisition of goods, works and services in an emergency and elimination of the consequences of force majeure or accidents requiring immediate recovery;

• the need for urgent medical intervention;

• purchase of medicines and medical devices through organizations (representative offices) established by the United Nations that have concluded an agreement (memorandum) with the Cabinet of Ministers;

• purchase of goods and services from a manufacturer or supplier who has intellectual, copyright or exclusive rights in relation to the subject of procurement;

• the acquisition of goods, works and services necessary to ensure the activities, safety and security of the President of the Kyrgyz Republic, the Speaker of the Parliament of the Kyrgyz Republic, the Chairman of the Cabinet of Ministers, including the provision of events held with the participation of these persons, as well as procurement related to ensuring visits of heads of foreign states, heads of governments of foreign states, heads of international organizations, parliamentary delegations, government delegations, delegations of foreign states (household, hotel, transport services, operation of computer equipment, protocol paraphernalia, ensuring sanitary and epidemiological well-being, providing safe food);

• purchases of goods, works and services by foreign institutions of the Kyrgyz Republic to ensure their activities in the territory of a foreign state;

• the acquisition of goods, works and services from a specific person, determined by the regulatory legal acts of the Kyrgyz Republic, as well as the acquisition of goods, works and services, the supply, performance or provision of which can be carried out exclusively by state bodies, local governments in accordance with their powers or subordinate them state, municipal institutions or enterprises, legal entities, 100 percent of the shares or shares in the authorized capital of which belong to the state, the relevant powers of which are established by laws, regulatory legal acts of the President of the Kyrgyz Republic and the Cabinet of Ministers;

• purchase of goods, works and services from subjects of natural monopoly at prices established by the authorized state body for the regulation of natural monopolies;

• purchase of goods from organizations created by disabled people, in which the number of disabled people is at least 50 percent of the number of employees, at prices established by the antimonopoly authority;

• on the basis of part 2 of Article 4 of the public procurement law, the implementation of a specific purchase of goods, works, services from a supplier determined by the Cabinet of Ministers by decision (instruction) of the President of the Kyrgyz Republic; and

• purchase of services for the production of state awards of the Kyrgyz Republic and documents for them.

Are there any proposals to amend the applicable procurement legislation?

On April 15, 2022, a new Law of the Kyrgyz Republic on Public Procurement was adopted.

Key procurement resources

The key procurement resources are contained in the Official Portal of Public Procurement.

Country Contacts

Mr Dino Santaniello
Head of Office, Tilleke & Gibbins

Miss Saithong Rattana
Associate, Tilleke & Gibbins

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of 'green' contracting opportunities?

Government tenders are advertised primarily on the website of the Ministry of Finance. The link is available here.

Ministries can also advertise tenders in their own areas of responsibility. This is the case for the Ministry of Public Works and Transport, which advertises tenders here.

In addition, mass media can be used by the government to advertise tenders. This will typically be done via newspapers.

Local and foreign individuals or legal entities can learn about tenders via announcements on the above websites or through mass media.

At present, there are no specific websites or methods for the advertisement of ‘green’ contracting opportunities.

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity?

Yes. The bid must be made by a legal entity that is registered with the local authorities. It is necessary to produce a Tax Identification Number or an Enterprise Registration Certificate, which are documents issued in Laos, once the incorporation of a legal entity is complete.

In addition, by law, an individual or legal entity participating in public tendering must satisfy the following eligibility criteria:

• Be a local or foreign individual, or a legal entity in possession of a Tax Identification Number, Enterprise Registration Certificate, or Tax Payment Certificate;

• Have evidence, such as certificates and references, of their achievements, experience, technical capacity, personnel and standard of work in the provisions of services under tender;

• Have bank statements from a local or foreign financial institution covering the last three years, or annual financial reports covering the same period;

• Have appropriate and competent personnel to provide the services required under the tender;

• Have no conflict of interest in the procurement, such as having participated in the preparation of the bidding document;

• Have certificates evidencing the standard and quantity of the production machinery, tools and equipment that will be used  in the performance of obligations under the contract that has been put out to tender;

• Have legal capacity and have no criminal convictions relating to the operation of a business.

Is there any requirement for 'local content'?

There are no specific local content requirements for tenders. However, there are generally applicable rules under the Labor Law.

Under the Labor Law, employers must prioritize the hiring of Lao nationals. As a result, the number of foreign employees in any given company is limited. Prior to hiring a foreign national, it is necessary to obtain authorization and quota approval from the Ministry of Labor and Social Welfare. In considering whether to grant approval, the Ministry will take into account the following factors:

• whether the employer is financially stable and able to conduct business and pay wages; and

• the job for which the foreign employee is being hired requires specific skills that the employer cannot readily find among local workers (the employer will be required to annually submit a work plan for the position to the authorities).

Quota approval will be granted provided the workplace complies with the following restrictions on the total number of foreign workforce in the labor unit:

• foreign employees who conduct physical work are limited to 15% of the total number of Lao employees; and

• foreign technical experts who conduct intellectual/special work are limited to 25% of the total number of Lao employees.

The Legal Procurement Framework

What is the applicable procurement legislation?

The applicable procurement legislation is :

• Law on Public Procurement No. 30/NA, dated 2/11/2017 (“Law on Public Procurement”). An unofficial English translation can be accessed here and the Lao version can be accessed here.

• Instruction on Implementation the Law on Public Procurement No. 0477/NA, dated 2/11/2017 (“Instruction on Implementation the Law on Public Procurement”). An unofficial English translation can be accessed here and the Lao version can be accessed here.

• Decree on Public Private Partnership No. 624/GO, dated 21/12/2020 (“Decree on Public Private Partnership”);

• Procurement guidelines in 2015 (“Procurement guidelines”). The Lao version can be accessed here.

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

No, Lao PDR has not ratified the WTO Government Procurement Agreement. Similarly, to date, we are not aware of any bilateral trade agreement containing government procurement commitments.

If so, how do these international trade agreements interact with the domestic procurement legislation?

Not applicable.

What types of procuring entity need to comply with the procurement legislation?

The Public Procurement Guidelines state that open bids are mandatory for “public-private partnerships such as BOO and BOT and other forms where risks are transferred to the private sector partners”.

The Public Procurement Law does not provide for what types of procuring entity must comply with its provisions. Rather, the Public Procurement Law only applies if State funds are used to pay contractors. This would mean that the project must deliver its services directly to the State.

The types of public procurement targeted by the legislation are construction and renovation works and the purchase of goods and services and consulting services.

Which types of contracts are covered?

The Law on Public Procurement applies to contracts above a certain “procurement threshold”. A procurement threshold is the estimated value of the procurement, inclusive of taxes and fees unless otherwise specified.

The procurement thresholds differ depending on the type of tender.

Under the Law on Public Procurement, there are four methods of procurement:

1. Open bidding;
2. Limited bidding;
3. Request for quotations (price comparison);
4. Direct contracting;

Open bidding

Open bidding are tenders formally announced through mass media or electronic systems without limitations on participants, including:

• National open bidding – a procurement process in which only local individuals or legal entities can participate; and

• International open bidding – a procurement process in which both local and foreign individuals and legal entities can participate.

Limited Bidding

Limited bidding is a tender call for high levels of expertise or specific techniques that may be provided by a limited number of contractors or suppliers. They are announced by project owners or procuring entities directly to contractors or suppliers and/or services providers for price competition.

Request for Quotations (Price Comparison)

Request for quotations are solicited by way of direct invitations or through appropriate electronic systems to no less than three participants.

Direct Contracting

Direct contracting is an agreement between project owners and contractors or procuring entities and suppliers without a competitive procurement process. Direct contracting can only be carried out in the following circumstances:

• there is a single source of products linked to protected industrial or intellectual properties;

• specific equipment and goods from contractors or suppliers are required for maintenance or replacement;

• where additional works, goods and/or services of a similar nature to an existing contract are required and where the value of the new contract does not exceed twenty percent of the original contract;

• government projects and activities in isolated areas with poor infrastructure access or a very limited number of interested bidders;

• where budgets are set under regulations;

• in cases of force majeure or urgency.

Procurement Thresholds

The applicable procurement thresholds for each type of tender are as follows.

Open Bidding

For procurement contracts arranged by open bidding the applicable financial thresholds are as follows:

Limited Bidding

For procurement contracts arranged by limited bidding, the applicable financial thresholds are as follows:

Request for Quotations (Price Comparison)

Where procurement contracts are arranged by way of a request for quotations, the applicable financial thresholds are as follows:

Direct Contracting

Where procurement contracts are arranged by way of direct contracting, the applicable financial thresholds are as follows:

For the consulting services, the applicable financial thresholds are as follows:

Are there any exemptions to competitive bidding?

Electricity concession projects

There are certain recognized exemptions form competitive bidding for electricity concession projects. The Law on Electricity refers to “non-bidding projects”, where private contractors directly negotiate the award of an electricity concession project with local government authorities.

Such non-bidding projects can only be launched if two conditions are satisfied:  

• the project must use new and modern technologies, and

• the projects must be strategic for the State. However, there are no further details on what “new and modern technologies” and “strategic for the State” mean. The Law on Electricity envisages separate regulations being made to elaborate on the process for awarding such contracts. However, no such regulations have been issued.

Direct contracting

As noted above, the Law on Public Procurement permits direct contracting in certain circumstances. A direct contract is an agreement between a project owner and a contractor, or between a procuring entity and a supplier, where no bidding is required.

Are there any proposals to amend the applicable procurement legislation?

Not applicable

Key procurement resources

Bolorma Volodya
Partner, Umguulliin GRATA International Mongolia LLP

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of ‘green’ contracting opportunities?

They are advertised on:

• The Electronic public procurement system (all sectors are included here)

• The State procurement agency, which has section of public tenders

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity?

If a bidder is a legal entity which is duly registered in Mongolia and has a shareholder that owns more than 50% who is a local individual or legal entity, the bidder shall be preferred over other bidders.

The information about whether a foreign entity can be a bidder in a tendering process shall be included in the tender announcement.

The procuring entity may not prohibit a foreign entity from participating in tenders for works with a budgeted cost of more than MNT 10,000,000,001 (approx 3,225,000USD) and for goods and services with a budgeted cost of more than MNT 100,000,001 (approx 32,200USD).

Is there any requirement for ‘local content’?

During the evaluation stage, preference is given to bidders who seek to employ at least 90% of the required roles from the local workforce.   

The ratio of foreign labour to local labour across various sectors is set out Appendix of Government Resolution No. 339 dated  2021 on Ratio of the foreign labour force

The Legal Procurement Framework

What is the applicable procurement legislation?

• Law of Purchase of goods, works and services with state and local property (hereinafter “Public procurement law”)

• Relevant procedures

• Law on Concessions

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

Mongolia has not ratified the WTO Government Procurement Agreement (GPA) and has a status of observer only.

If so, how do these international trade agreements interact with the domestic procurement legislation?

Not applicable.

What types of procuring entity need to comply with the procurement legislation?

• State and locally owned legal entities;

• Legal entities with 50 or more percent state and local ownership;

• “Project implementers” specified in Article 4.1.21 of the Law on Debt Management.

Which types of contracts are covered?

• goods

• works

• consulting

• non-consulting

• direct contracts

• general contracts

• turnkey contracts

• e-shop supply contracts

• mineral licenses

• concessions

Are there any exemptions to competitive bidding?

Yes.

• In the case of two unsuccessful tenders to select a consultant specified in Article 35 of Public procurement law, a direct contract may be concluded.

• When the value is less than 10 million MNT(app 3,225USD).

• An agreement entered into before 1 July 2021, according to Law of State Savings.

• It is possible to conclude an agreement with only one person with the requirement to protect intellectual property rights and tangible cultural heritage and there is no substitute for him/her.

• If the additional supply does not exceed 20 percent of the original contract price, changing the supplier when replacing, repairing or re-supplying some parts of the goods and equipment supplied under the original contract will result in the customer obtaining other types of technical specifications which cause difficulties or incur inefficient expenses.

• If the cost of additional work does not exceed 15 percent of the original contract price and the minimum threshold price specified in 8.1.1 of the law (it is better to hold a re-tender in case of repeating additional work or similar work purchased through tender).

• If it is not possible to comply with the minimum bidding deadline in accordance with the open or limited tender procedure due to sudden or force majeure circumstances declared a disaster emergency and transferred to the disaster protection readiness level.

• If the Government considers it necessary to directly select contractors based on the reference price if the amount of investment in the road and energy project to be built with state budget funds is equal to or exceeds the capacity of all domestic business entities operating in the respective field.

• If it is considered necessary to purchase some special drugs and medical devices directly or indirectly from international organizations related to ensuring the health and safety of the population.

• To purchase factory goods, works and services in respect of prisons.

• To purchase vaccines required for emergency immunization, certified by an international reference laboratory, directly from the manufacturer.

• To obtain seeds from the producer that meet the quality requirements as a matter of necessity to ensure food safety.

Are there any proposals to amend the applicable procurement legislation?

There will be legislative changes in this area soon. There is an ongoing project relating to Amendments to the Law on Procurement of Goods, Works and Services with State and Local Funds.

Key procurement resources

• Public Procurement System of Mongolia

• Public Procurement Rules

Country Contacts

Yuwadee Thean-ngarm
Partner and Director, Tilleke & Gibbins Myanmar Limited 

Nwe Oo
Senior Associate, Tilleke & Gibbins Myanmar Limited 

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of ‘green’ contracting opportunities?

Government tenders are generally advertised at:

• Myanmar National Portal

• State-owned newspapers

• KyemonMyanmar Alin

• The Global New Light of Myanmar

• Government Departments

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity?

According to clause 40 of Directive No. 1/2017 of the President’s Office on Tender Procedures which is followed by Government Departments and Organizations in Construction, Purchase, Procurement of Services, Lease And Sale,  bidders must comply with the following:

• The company must be officially registered in Myanmar.

• The company must have paid the specified tax in Myanmar.

According to clause 41 of same Directive, in case of tenders for overseas procurement, tender-bidding international companies must be registered in Myanmar before contracting if the tender is awarded.

Is there any requirement for ‘local content’?

Generally, with reference to Section 51(c) of the Myanmar Investment Law, an investor may appoint ‘only citizens for work that does not require skill. Respective tender rules apply for overseas procurement tenders.

The Legal Procurement Framework

What is the applicable procurement legislation?

• Directive No. 1/2017 of the President’s Office (now the Office of the State Administration Council) on Tender Procedures to be Followed by Government Departments and Organizations in Construction, Purchase, Procurement of Services, Lease and Sale.

• Directive for Construction under the contract system - 2016 - Ministry of Construction.

• Project Bank Notification No. 2/2018 of the President’s Office.

• Unsolicited Proposals Notification No. 1/2020 of the Ministry of Planning, Finance, and Industry.

• Directive No. 7/2020 of the President’s Office on Procedures for Requesting National Budget and Tender Norms for Construction Activities.

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

Myanmar has not ratified the WTO Government Procurement Agreement or any bilateral trade agreement with Government Procurement commitments.

If so, how do these international trade agreements interact with the domestic procurement legislation?

Not applicable.

What types of procuring entity need to comply with the procurement legislation?

All types of procuring entities wishing to compete in bidding need to comply with the procurement legislation.

Which types of contracts are covered?

Tender rules mostly cover contracts for government procurement, construction, rent, sale and getting consultancy services—mostly fixed price contracts.

According to Clause 38 of Directive No. 1/2017, contracts concluded by the purchasing department or organization and the winning bidder must include:

• Details of the two contracting parties;

• Description of the goods and services to be delivered, their quantity and scope;

• Place and time for delivery of the goods or services;

• Value of the contract and tax payment;

• Currency (MMK or specified foreign currency);

• Payment period and plan;

• Other conditions and information prescribed in the contract;

• Service and guarantee period;

• Plan for the repayment of the performance guarantee;

• Plan for force majeure events;

• Copyright and intellectual property rights;

• Termination of and amendments to the contract; and

• Delay and penalties.

In addition, according to Clause 129 of Directive No. 7/2020, contracts for construction business between a government department and a winning bidder must include the following:

• Details of the two contracting parties;

• Information of work and construction period;

• Value of the contract and tax payment;

• Payment schedule;

• Rules and regulations of tender, norms, forms;

• Payment of performance guarantee, guarantee period and repayment plan, arrangement for confiscation if the winning bidder fails to implement the contract;

• Plan for force majeure events;

• Amendment, termination and transfer of work;

• Duty and responsibility of contracting parties;

• Termination or amendment of the contract;

• Delay and penalties; and

• Regulatory terms.

Are there any exemptions to competitive bidding?

Companies can submit unsolicited proposals subject to Unsolicited Proposals Notification No. 1/2020 of Ministry of Planning, Finance and Industry.

In addition, according to Clause 51 of Directive No. 7/2020, the government can proceed with direct contracting in the following situations:

• An unexpected urgent situation or natural disaster has occurred which needs quick construction in response, and there is not enough time for another tender process;

• Construction work in areas of conflict in which an independent tender process cannot be called;

• Special construction tasks subject to security restrictions that are related to the State’s national security and safety such as jails, banks, prisons, border fences that demarcate the borders of the State, construction of security gates at borders, and construction of state-owned buildings based overseas;

• Permitting the same contractor (who can satisfy the needs of the construction work, however has not finished the project within the prescribed financial year due to an unexpected situation) to continue a contract with a value of less than MMK 100 million (approx. USD 47,200) for the next financial year;

• If subsequent construction work, which relates to previous work, the original contractor may continue with a supplemented budget according to the National Budget Law (a limited tendering process must be called if the subsequent construction works are not connected with the previous work);

• Where there are no tender submissions although tenders are operating in open tendering or limited tendering;

• In hiring an individual consultant and there is only one who is qualified (i.e., there is no other choice).

Are there any proposals to amend the applicable procurement legislation?

No.

Key procurement resources

• Directive No. 1/2017 of the President’s Office (now the Office of the State Administration Council) on Tender Procedures to be Followed by Government Departments and Organizations in Construction, Purchase, Procurement of Services, Lease and Sale.

• Directive for Construction under the contract system - 2016 - Ministry of Construction.

• Project bank Notification No. 2/2018 of the President’s Office.

• Unsolicited Proposals Notification No. 1/2020 of the Ministry of Planning, Finance and Industry.

• Directive No. 7/2020 of the President’s Office on Procedures for Requesting National Budget and Tender Norms for Construction Activities.

Country Contacts

Mark Williamson
Partner, DLA Piper

Emma Moran
Partner, DLA Piper

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of ‘green’ contracting opportunities?

Government tenders are advertised on GETS.

There is no specific source for ‘green’ contracting opportunities.

For completeness, we note that under the Code of Conduct (that certain procuring entities are required to give effect to), there is an expectation on suppliers to establish environmentally responsible business and proactively improve environmental performance.

Further, if the procured works are for new construction works, the Government Procurement Rules require consideration of Sustainable Construction Procurement Guidelines. The Guidelines encourage, amongst other things, the use of low-impact sustainable construction materials and the minimisation of energy and water consumption. How these guidelines will be implemented will turn on the relevant contract.

There are also minimum environmental standards that are required for procurement of specific services (such as vehicles and heating systems) for the transition to a net-zero emission economy.

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity?

No (noting that companies which carry on business in New Zealand are required to setup a subsidiary or branch).

Is there any requirement for ‘local content’?

There is no legislative requirement on contractors for the implementation of local content.

Certain government agencies procuring services are required to give effect to the Supplier Code of Conduct. This Code encourages suppliers to consider “local, Māori and Pasifika businesses” to deliver the contract. Any specific requirements will turn on the relevant contract.

The Legal Procurement Framework

What is the applicable procurement legislation?

There is no overarching procurement legislation in New Zealand. Further, no specific legislation regulates the procurement of defence and PPPs.

Specific legislation may be applicable, for example, to contracts relating to the operation of a water service, where legislation limits the term of the contract to a maximum of 35 years. Also, the Land Transport Management Act 2003 applies to procurement in the land transport sector. This legislation also deals with road tolling regimes.

The Government Procurement Rules apply to and regulate the public service departments and state services procuring works through GETS. These are ministerial guidelines issued by the Ministry of Business, Innovation and Employment. 

For completeness, we note that the Public Finance Act 1989 requires Crown departments to incur expenses only when they are authorised by an appropriation or by an Act. Government departments are generally empowered by the Act that establishes them to incur expenditure and outlines additional considerations that overlay their obligations under the Procurement Rules. Also, the Local Government Act 2002 requires a local authority to conduct its commercial transactions in accordance with sound business practices.

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

Yes, New Zealand ratified the GPA on 13 August 2015.

The following bilateral trade agreements ratified by New Zealand contain government procurement commitments:

• Comprehensive Progressive Agreement for Trans-Pacific Partnership;

• Regional Comprehensive Economic Partnership;

• New Zealand-Hong Kong, China Closer Economic Partnership;

• New Zealand-Thailand Closer Economic Partnership;

• New Zealand-Singapore Closer Economic Partnership; and

• New Zealand-China Free Trade Agreement.

On 30 June 2022 the European Union and New Zealand concluded negotiations on the New Zealand-European Union Free Trade Agreement. Government procurement is a key element of the agreement. The New Zealand-European Union Free Trade Agreement is yet to be ratified.

If so, how do these international trade agreements interact with the domestic procurement legislation?

Generally, international trade agreements are only part of domestic law to the extent they are incorporated into relevant legislation.

The Government Procurement Rules reflect the obligations in the relevant international trade agreements. Also, certain agencies not otherwise bound by the Government Procurement Rules are required to meet the requirements of the WTO Agreement on Government Procurement and other free trade agreements New Zealand has entered into. The Government Procurement Rules will only apply to those agencies to the extent that they are required to meet the commitments made in those free-trade agreements.

What types of procuring entity need to comply with the procurement legislation?

The following Agencies are required to comply with the Government Procurement Rules.

• all Public Service departments (as listed in Schedule 2 of the Public Service Act 2020);

• New Zealand Police;

• New Zealand Defence Force; and

• all State Services agencies covered by the Whole of Government direction.

Entities like the Reserve Bank of New Zealand and companies listed in schedule 4 of the Public Finance Act 1989 are also expected to comply with the Rules.

Other State Sector and Public Sector agencies are not mandated to follow the Rules but are encouraged to do so as good practice.

Which types of contracts are covered?

The threshold for the Government Procurement Rules to be engaged are when there is procurement of goods or services or refurbishment work for which the maximum total estimated value exceeds $100,000 (excluding Goods and Services Tax (GST)).

If the procurement is for new construction works, the Rules are engaged if the maximum total estimated value is $9 million (excluding GST).

These value thresholds are revised from time to time.

Are there any exemptions to competitive bidding?

Under the Government Procurement Rules, all suppliers must be given an equal opportunity to bid for contracts (rule 3), and agencies should use open competitive procurement processes (rule 13).

There are three exceptions to competitive bidding principles. These are:

• Emergency: This is defined by the Ministry of Business, Innovation and Employment as a sudden unforeseen event, such as a natural or manmade disaster, critical health or environmental emergency, or political emergencies.

• Closed competitive or direct source:

  If there has been no substantial change to the core of the procurement requirements, and there was open advertisement of that opportunity in the last 12 months where no responses were received (among other things), a closed competitive advertisement exception applies. This permits the Agency to make a Request for Quote, Request for Tender, or Request for Proposal to a limited number of known suppliers, and forego the competitive bidding requirements.

• Only one supplier: if there is no real competition in the market, or the procurement is for the acquisition of IP, the Agency is exempt from open advertisement. However, the Agency cannot contract with the supplier – they are still required to request a formal proposal from the supplier and assess its public value.

Are there any proposals to amend the applicable procurement legislation?

The Government is implementing a new 'Procurement for the Future' strategy. The three strategic focus areas are:

• data and transparency;

• working together as one; and

• unlocking value.

The Procurement for the Future strategy includes short term priorities over the next six and 24 months, with longer term ambitions to 2030. More information can be found here.

• For suppliers | New Zealand Government Procurement and Property

• GETS - Government Electronic Tender Service | Current Tenders

Country Contacts

Umer Akram Chaudhry
Partner, Raja Mohammed Akram & Co

Asad Ladha
Partner, Raja Mohammed Akram & Co

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of ‘green’ contracting opportunities?

Government tenders, including tenders from all provinces, are advertised on the Public Procurement Regulatory Authority (PPRA) website. Procurement opportunities may also be advertised in print media, if deemed necessary by PPRA.

The link to PPRA’s website is provided here.

Whilst there are not yet any specific sources regarding the announcement of ‘green’ contracting opportunities, the Public Procurement Regulatory Ordinance, 2002 (PPRA Ordinance) is relatively flexible and permits the submission of an ‘unsolicited proposal’ under Section 37A of the Ordinance. Such an ‘unsolicited proposal’ can be received by PPRA from any individual or agency, private or public, consistent with the mission of PPRA. After the viability of the proposal is assessed, PPRA advertises the proposal for open competition. This gives private and public entities the opportunity to submit a proposal where there is an opportunity to enhance sustainability and further ‘green’ initiatives in the region. An initiator of an ‘unsolicited proposal’ will be exempt from the prequalification requirements and awarded five percent additional weighting to the project proponent in the combined evaluation of the proposal.

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity?

No, there are no such requirements that a bidder must be established in Pakistan. The federal legislation sets out that competitive bidding is to include both national competitive bidding and international competitive bidding. However, as per Rule 24 of the Public Procurement Rules, 2004 (PPRA Rules) PPRA shall, while evaluating and comparing bids, allow for preference to domestic suppliers or contractors, while competing with international bidders, in accordance with the policies of the Federal Government or regulations made by PPRA for certain projects.

Provincial legislation also allows for both national and international competitive bidding. Specific to the province of Sindh, Rule 29(3) of the Sindh Public Procurement Rules, 2010 has clarified that international bidders that are not registered or incorporated in Pakistan cannot participate in the procurement of certain goods, works and related services. An analogous provision is also contained in Rule 20(4) of the Balochistan Public Procurement Rules, 2014, specific only to the procurement of consultancy services.

The following provisions of the provincial legislation relate to international competitive bidding:

• Punjab: Punjab Procurement Rules, 2014 (see Rules 14 and 38 (b)(iv)).

• Sindh: Sindh Public Procurement Rules, 2010 (see Rules 2(1)(aa), 15, 29, 38, 46, and 82).

• Balochistan: Balochistan Public Procurement Rules, 2014 (see Rules 2(1)(x), 20, 24, and 30).

• Khyber Pakhtunkhwa: Khyber Pakhtunkhwa Public Procurement of Goods, Works and Services Rules, 2014 (see Rules 34 and 41).

Is there any requirement for ‘local content’?

Though federal and provincial legislation is silent with respect to employment quotas, all terms and conditions of a bid will be stated for each specific project in its relevant bidding documents. There may be certain conditions in particular tenders regarding employment quotas for a particular type of project.

The Legal Procurement Framework

What is the applicable procurement legislation?

The Public Procurement Regulatory Authority Ordinance, 2002 and the Public Procurement Rules, 2004 (as amended from time to time) are the key pieces of federal legislation applicable to procurement by the federal government. The provincial governments have also established regulatory authorities and notified their respective Public Procurement Rules. The provincial rules are broadly in sync with the federal rules. The links to the federal and provincial legislature are provided below:

Federal Legislation

• The Public Procurement Regulatory Authority Ordinance, 2002

• The Public Procurement Rules, 2004

Sindh

• Sindh Public Procurement Act, 2009

• Sindh Public Procurement Rules, 2010

Punjab

• Punjab Procurement Regulatory Authority Act, 2009

• Punjab Procurement Rules, 2014

Khyber Pakhtunkhwa

• Khyber Pakhtunkhwa Public Procurement Regulatory Authority Act, 2012

• Khyber Pakhtunkhwa Public Procurement Regulatory Authority Rules, 2014

Balochistan

• Balochistan Public Procurement Regulatory Authority (Amendment) Act, 2013

• Balochistan Public Procurement Rules, 2014

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

No, Pakistan has not yet ratified the WTO Government Procurement Agreement (GPA), however, it has obtained observer status to the WTO on 11 February 2015. The WTO permits any WTO member from participating in the Government Procurement Committee as an observer by submitting a written notice to the Committee. Any WTO observer may submit a written request, and may be accorded observer status by the Committee. Observer status is usually requested by countries interested in acceding to the WTO, the purpose of observer status being to allow a government to better acquaint itself with the WTO and its activities, and to prepare and initiate negotiations for accession to the WTO Agreement.

If so, how do these international trade agreements interact with the domestic procurement legislation?

Rule 5 of the PPRA Rules provide that in case of any conflict with an obligation under the Rules and any international treaty or agreement, the provisions of such international treaty or agreement shall prevail to the extent they conflict.

What types of procuring entity need to comply with the procurement legislation?

Public procurement is the process of acquiring goods or services by the government or public entities from the private sector or an external source. The procurement process typically involves the issuance of an invitation to bid followed by a review of the bids and the award of a contract to the most qualified entity or company.

All entities involved in public procurement are required to comply with the relevant legislation.

The PPRA is responsible for monitoring procurement by public sector agencies/organizations and has been delegated necessary powers under the PPRA Ordinance and the PPRA Rules.

The PPRA Rules specifically state that they shall apply to all procurements made by all procuring agencies of the Federal Government whether within or outside of Pakistan.

Which types of contracts are covered?

All types of contracts are covered under the public procurement rules and regulations. The method of procurement may vary depending on the type of contract being tendered.

Are there any exemptions to competitive bidding?

Rule 42(c) of the Public Procurement Rules, 2004 provides for ‘direct contracting’ as an alternative method to procurement via competitive bidding in certain limited circumstances. These circumstances include:

• where procurement concerns the acquisition of spare parts or supplementary services from the original manufacturer or supplier;

• only one manufacturer or supplier exists for the required procurement;

• where a change of supplier would oblige the procuring agency to acquire material having different technical specifications or characteristics and would result in incompatibility or disproportionate technical difficulties in operation and maintenance;

• repeat orders not exceeding fifteen per cent of the original procurement;

• in case of an emergency;

• when the price of goods, services or works is fixed by the government or any other authority, agency or body duly authorized by the Government, on its behalf;

• for purchase of motor vehicle [sic] from local original manufacturers or their authorized agents at manufacturer’s price.

Additionally, the Public Procurement Rules, 2004 provide that PPRA may engage in ‘negotiated tendering’ with one or more suppliers or contractors with or without prior publication of a procurement notification. However, ‘negotiated tendering’ will only be conducted in very specific circumstances, as the primary mode of public procurement is by ‘competitive bidding’.

PPRA may also recommend to the Federal Government that the procurement of an object or class of objects in the national interest be exempted from the operation of the relevant public procurement legislation and the Federal Government on such recommendations shall exempt the aforesaid objects or class of objects from the operation of the laws and rules and regulations made thereunder (Section 21 of the Public Procurement Regulatory Authority Ordinance, 2002).

Are there any proposals to amend the applicable procurement legislation?

The PPRA Rules were amended relatively recently in 2020. There are currently no proposals to further amend the procurement legislation.

Key procurement resources

• The Public Procurement Regulatory Authority

• Sindh Public Procurement Regulatory Authority

• Punjab Procurement Regulatory Authority

• Khyber Pakhtunkhwa Public Procurement Regulatory Authority

• Balochistan Public Procurement Regulatory Authority

Country Contact

Gwen Grecia-De Vera
Partner, Puyat Jacinto & Santos (PJS Law)

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of ‘green’ contracting opportunities?

The PhilGEPS serves as the Philippines’ single, centralized electronic portal and the primary and definitive source of information on government procurement.

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity?

The following answers are based on the requirements under Republic Act No. 9184 or the Government Procurement Reform Act ("GPRA").

• Generally, only Filipino bidders may participate in government procurement activities. 

• For the procurement of goods, the following are eligible to participate:

• Duly licensed Filipino citizens;

• Partnerships and corporations duly organized under the laws of the Philippines and of which at least sixty percent (60%) of the interest or outstanding capital stock belongs to citizens of the Philippines;

• Cooperatives duly organized under Philippines law; and

• Persons and entities forming a joint venture provided that the ownership or interest held by Filipino citizens in the joint venture is at least 60%.

Foreign bidders are permitted to participate in the procurement of goods under any of the following circumstances:

• When provided for under any treaty or international or executive agreement;

• When the foreign bidder is a citizen, corporation, or association of a country, the laws or regulations of which grant reciprocal rights or privileges to citizens, corporations, or associations of the Philippines;

• When the goods sought to be procured are not available from local suppliers; or

• When there is a need to prevent situations that defeat competition or restrain trade.

• For the procurement of infrastructure projects, the following are eligible to participate:

• Duly licensed Filipino citizens;

• Partnerships and corporations duly organized under the laws of the Philippines and of which at seventy-five percent (75%) of the interest or outstanding capital stock belongs to citizens of the Philippines;

• Cooperatives duly organized under Philippines law; and

• Persons and entities forming a joint venture provided that the ownership or interest held by Filipino citizens in the joint venture is at least 75%.

Foreign bidders are permitted to participate in the procurement of infrastructure projects when provided for under any treaty or international or executive agreement.

• The following persons or entities are allowed to participate in the bidding for consulting services:

• Duly licensed Filipino citizens;

• Partnerships and corporations duly organized under the laws of the Philippines and of which at least sixty percent (60%) of the interest or outstanding capital stock belongs to citizens of the Philippines;

• Cooperatives duly organized under Philippines law; and

• Persons and entities forming a joint venture provided that the ownership or interest held by Filipino citizens in the joint venture is at least 60%.

   

Is there any requirement for ‘local content’?

The GPRA provides that goods may be obtained from domestic or foreign sources and the procurement thereof shall be open to all eligible suppliers, manufacturers and distributors. However, in the interest of availability, efficiency and timely delivery of goods, the procuring entity may give preference to the purchase of domestically-produced and manufactured goods, supplies and materials that meet the specified or desired quantity.

In a non-policy matter opinion, the Government Procurement Policy Board determined that “[d]ue to a recent legislative policy shift, however, we note that Section 55 of the Philippine Competition Law repealed Section 4 of Commonwealth Act (CA) No. 138 or the Flag Law that grants preference to Domestic Entities. With this repeal, discussion on domestic entity and its preferential entitlement becomes moot and academic, because preference to a ‘domestic entity’ can no longer be invoked by bidders and provided by the procuring entity.”

However, domestic preference remains in favour of a Domestic Bidder, or any person or entity offering unmanufactured articles, materials or supplies of the growth or production of the Philippines, or manufactured articles, materials, or supplies manufactured or to be manufactured in the Philippines substantially from articles, materials, or supplies of the growth, production, or manufacture, as the case may be, of the Philippines.

The Legal Procurement Framework

What is the applicable procurement legislation?

Republic Act No. 9184 or the Government Procurement Reform Act, enacted in 2003, serves as the legal framework for public procurement in the Philippines. It covers the procurement of goods, consultancy services, and infrastructure, and allows for the conduct of mixed procurement (any combination of procurement of goods, services, and infrastructure).

There are other modes of procurement for specific situations.

• Republic Act No. 6957, as amended by Republic Act No. 7718, or the Philippine BOT Law, authorizes all government infrastructure agencies, including government-owned and-controlled corporations ("GOCCs") and local government units ("LGUs") to enter into contract with any duly pre-qualified project proponent for the financing, construction, operation and maintenance of any financially viable infrastructure or development facility.

• The 2013 Revised Guidelines and Procedures for Entering into Joint Venture (JV) Agreements Between Government And Private Entities, which applies only to all GOCCs, government corporate entities ("GCEs"), government instrumentalities with corporate powers ("GICPs"), government financial institutions ("GFIs"), state universities and colleges ("SUCs").

• Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

The Philippines has, since 2019, enjoyed observer status in the Committee on Government Procurement.

If so, how do these international trade agreements interact with the domestic procurement legislation?

In general, any treaty or international or executive agreement affecting the subject matter of the GPRA to which the Philippine government is a signatory must be observed.

In addition, our procurement legislation provides that goods may be obtained from domestic or foreign sources, consistent with the country’s obligations under international treaties or agreements and subject to a determination of the supplier’s eligibility.

What types of procuring entity need to comply with the procurement legislation?

The GPRA applies to the procurement by all branches and instrumentalities of the Philippine government, its departments, offices and agencies, including GOCCs and LGUs, regardless of source of funds, whether local or foreign.

Which types of contracts are covered?

The GPRA applies to the procurement of infrastructure projects, goods and consulting services.

Are there any exemptions to competitive bidding?

• The GPRA recognizes alternative methods of procurement, including direct contracting or single source procurement and negotiated procurement, as follows:

• Limited Source Bidding, otherwise known as Selective Bidding - a method of procurement that involves direct invitation to bid by the procuring entity from a set of pre- elected suppliers or consultants with known experience and proven capability relative to the requirements of a particular contract;

• Direct Contracting, otherwise known as Single Source Procurement - a method of procurement that does not require elaborate bidding documents because the supplier is simply asked to submit a price quotation or a pro-forma invoice together with the conditions of sale, which offer may be accepted immediately or after some negotiations;

• Repeat Order - a method of procurement that involves a direct procurement of goods from the previous winning bidder, whenever there is a need to replenish goods procured under a contract previously awarded through competitive bidding;

• Shopping - a method of procurement whereby the procuring entity simply requests for the submission of price quotations for readily available off-the-shelf goods or ordinary equipment to be procured directly from suppliers of known qualification; or

• Negotiated Procurement - a method of procurement that may be resorted under the extraordinary circumstances provided for in the GPRA and its Implementing Rules and Regulations, whereby the procuring entity directly negotiates a contract with a technically, legally and financially capable supplier, contractor or consultant.

• Direct Contracting may be resorted to only in any of the following circumstances:

• Procurement of goods of proprietary nature, which can be obtained only from the proprietary source, i.e. when patents, trade secrets and copyrights prohibit others from manufacturing the same item;

• When the procurement of critical components from a specific manufacturer, supplier or distributor is a condition precedent to hold a contractor to guarantee its project performance, in accordance with the provisions of his contract; or,

• Those sold by an exclusive dealer or manufacturer, which does not have sub-dealers selling at lower prices and for which no suitable substitute can be obtained at more advantageous terms to the Government.

• Negotiated Procurement is allowed only in any of the following instances:

• In cases of two failed biddings;

• In case of imminent danger to life or property during a state of calamity, or when time is of the essence arising from natural or man-made calamities or other causes where immediate action is necessary to prevent damage to or loss of life or property, or to restore vital public services, infrastructure facilities and other public utilities; Take-over of contracts, which have been rescinded or terminated for causes provided for in the contract and existing laws, where immediate action is necessary to prevent damage to or loss of life or property, or to restore vital public services, infrastructure facilities and other public utilities;

• Where the subject contract is adjacent or contiguous to an on-going infrastructure project (provided the original contract is the result of a competitive bidding);

• Whenever applicable, this principle shall also govern consultancy contracts, where the consultants have unique experience and expertise to deliver the required service; or,

• Subject to specified guidelines purchases of goods from another agency of the Government, such as the Procurement Service of the Department of Budget and Management ("PS-DBM"), which is tasked with a centralized procurement of commonly used goods for the government.

Are there any proposals to amend the applicable procurement legislation?

Yes, there are proposals to amend pending in the current Congress.

Key procurement resources

• Government Procurement and Policy Board

• PhilGEPS

• National Economic and Development Authority

• Public-Private Partnership Center of the Philippines

Country Contact

Katherine Chew
Partner, DLA Piper

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of 'green' contracting opportunities?

Tender notices and Quotation notices are posted on the Government Electronic Business (GeBIZ) website. GeBIZ also contains information on tender schedules (bids after a tender closes) and tender awards.

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity?

There is no general requirement for the bidders to be established in Singapore in order to enter into a contract with the procuring entity. To the extent that there are specific registration requirements applicable to the bidders (where the bidder has to be registered with the relevant Government Registration Authorities such as the Building and Construction Authority for the supply of construction-related goods and services)such criteria (if any) will be stated in the relevant tender notice and documentation. 

Generally, the Singapore Government adopts the fundamental principles of fairness, openness and competitiveness for its government procurement policies. Tenders are awarded to the bid that brings the best value for money for the public sector, taking a holistic approach.

Is there any requirement for 'local content'?

There is generally no "local content" requirement but if there is any specific requirement as to, amongst other things, the qualification of the employees of the bidder, it will be stated in the relevant tender notice and documentation.

The Legal Procurement Framework

What is the applicable procurement legislation?

The laws governing public sector procurement are primarily set out in the Government Procurement Act 1997 of Singapore (GP Act) and subsidiary legislation promulgated thereunder, namely the Government Procurement Regulations 2014 (GP Regulations), the Government Procurement (Challenge Proceedings) Regulations (Challenge Proceedings Regulations) and the Government Procurement (Application) Order (Application Order).

There is also a Public Private Partnership Handbook (Version 2 issued in March 2012) and various centralised procurement guidelines (made available in the GeBIZ portal) issued by the Ministry of Finance. These documents however do not carry the force of law.

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

Singapore signed the GPA on 15 April 1994 (which entered into force on 1 January 1996).

Obligations on government procurement can also be found in various bilateral and multilateral treaties that Singapore has entered into, including the Agreement between New Zealand and Singapore on a Closer Economic Partnership dated 1 January 2001 (ANZSCEP, which provides for, amongst others, a single government procure market in which Singapore suppliers enjoy equal and non-discriminatory access to all government tenders above ~S$110,000), the Agreement between Japan and Singapore for a New Age Economic Partnership dated 30 November 2002 (JSEPA), the EFTA-Singapore Free Trade Agreement between the European Free Trade Association and Singapore on 26 June 2002 (ESFTA), the Singapore-Australia Free Trade Agreement on 17 February 2003 (SAFTA) and the United States-Singapore Free Trade Agreement on 6 May 2003 (USSFTA).

If so, how do these international trade agreements interact with the domestic procurement legislation?

The GP Act was enacted to generally give effect to the GPA, as well as other international obligations applicable to Singapore relating to procurements by the Singapore Government and public authorities.

The country-specific thresholds pursuant to the bilateral trade agreements are set out in the Application Order.

What types of procuring entity need to comply with the procurement legislation?

Any ministry or department of the Government, Organ of State or statutory board may be declared by the Ministry of Finance as a contracting authority for the purposes of the GP Act. The Ministry of Finance may also declare that a particular procurement be subject to the GP Act.

Which types of contracts are covered?

Paragraph 4 of the Application Order provides for different financial thresholds for procurement contracts in relation to: (i) the country to which the procurement relates; (ii) the types of goods / services to be supplied; and (iii) the identity of the relevant contracting authority.

As for domestic procurement contracts, those with an estimated contracting value above S$6,000 are subject to the GP legislations. 

Are there any exemptions to competitive bidding?

Procurement contracts that are below the stipulated financial thresholds are not subject to the GP Act  and are thus not required to undergo competitive bidding.

In relation to domestic procurement contracts, those with an estimated contracting value of up to S$6,000 are considered a "small value purchase" and may be carried out directly by the authority by buying such products off-the-shelf or purchasing directly from known sources.

Are there any proposals to amend the applicable procurement legislation?

We are not aware of any proposals to amend the applicable procurement legislation at present. .

Notwithstanding, the Ministry of Finance regularly reviews the procurement legislation and may make changes to the rules from time to time where necessary and appropriate (for instance in relation to sustainability). Further, Singapore may enter into international treaties and bilateral agreements and such treaties / bilateral agreements may contain provisions in relation to procurement, as a result of which the implementing regulations and the Application Order may need to be amended. 

Key procurement resources

• GeBiz Portal

Country Contact

Nurlan Kyshtobayev
Partner, GRATA International

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of 'green' contracting opportunities?

The list of government tenders is available on the website of the Agency for Public Procurement of Goods, Works and Services under the Government of the Republic of Tajikistan. It is currently the only source of information on public procurement.

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity?

The bidder can be any legal business or individual participating in procurement operations for the delivery of products, works, and services. As a result, there are no obligations to create an SPV for a specific project or to establish physical presence in Tajikistan, among other things.

Is there any requirement for 'local content'?

The quota for the number of foreign workers is determined by the Migration Service approximately between the first and second quarter of the year on an annual basis. It is not publicly available and can be obtained either by contacting the migration service or consulting with a local law firm.

The Legal Procurement Framework

What is the applicable procurement legislation?

• Constitution of the Republic of Tajikistan dated 6 November 1994, changes and additions were made on 26 September 1999, 22 June 2003 and 22 May 2016.

• Law on Public Procurement of Goods, Works and Services no. 168, dated 3 March 2006.

• Law on Public-Private Partnership no. 997, dated 28 December 2012.

• Civil Code of the Republic of Tajikistan Part 1 no. 802 dated 30 June 1999 and Part 2 no. 884, dated 11 December 1999.

• Customs Code of the Republic of Tajikistan no. 62, dated 3 December 2004.

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

According to the WTO website, the current status Republic of Tajikistan is an "observer".

The Republic of Tajikistan is a party to a number of bilateral treaties that deal with public procurement, either directly or indirectly (e.g. Free Trade Agreement between Republic of Macedonia and Ukraine, ratified on 5 July 2001.

If so, how do these international trade agreements interact with the domestic procurement legislation?

The laws of the Republic of Tajikistan establish that recognized international treaties take precedence over domestic legislation.

What types of procuring entity need to comply with the procurement legislation?

The Law on Public Procurement of Goods, Works and Services applies to all public procurements carried out on the territory of the Republic of Tajikistan, with the exception of public procurements to ensure national defence, national security, state secrets, precious metals and precious stones, as well as to eliminate the consequences of emergency situations and other emergency cases in accordance with the decision of the Government of the Republic of Tajikistan.

According to the Law on Public Procurement of Goods, Works and Services, the following organizations can be procuring organizations if they meet the qualification requirements:

• budgetary organizations, state bodies, state enterprises;

• communal organizations financed from the local budget;

• institutions and other organizations established by the Government of the Republic of Tajikistan, public authorities;

• local self-government bodies;

• trust funds created at the expense of public funds;

• joint stock companies and joint ventures in which the state owns more than 50 percent of the shares or shares of the statutory fund;

• branches and (or) representative offices of the above;

• state-owned banks that carry out domestic purchases.

Which types of contracts are covered?

The Law on Public Procurement of Goods, Works and Services does not include any thresholds for public procurement contracts.

In general, public procurement laws oversee any acquisition of products, works, services, and consulting services by the procuring entity using statutory established means and financed in whole or in part with state funds.

Are there any exemptions to competitive bidding?

Single-source procurement is acceptable and is a procedure whereby the procuring entity signs a procurement contract after negotiating with only one supplier (contractor).

The procuring entity, in agreement with the authorized body, may decide to conduct procurement from a single source only in the following cases:

• if it carries out additional orders within six months from the date of conclusion of the contract, not exceeding 15 percent of the cost of the previous purchase, and maintains the previous norms, parameters and standards;

• signing an agreement when conducting research, experiments or preparing a scientific opinion;

• if these goods, works or services are available only from any specific supplier (contractor) or any supplier (contractor) has exclusive rights in relation to these goods, works or services;

• when making purchases for the implementation of a creative project or creative activity in the field of art or culture;

• if there is an urgent need for procurement due to circumstances that the procuring entity could not foresee.

Are there any proposals to amend the applicable procurement legislation?

To best of our knowledge there are no such plans. It should be noted that the legislative process in the Republic of Tajikistan is not transparent and information about a new law or changes made becomes publicly available after their adoption.

Procurement resources

Country Contact

Atabek Sharipov
Partner, Grata International Law Firm

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of 'green' contracting opportunities?

Government tenders, as a rule, are advertised in the special informational portal of government procurement.

From 5 January 2022, all purchases by state customers (budget and corporate) are carried out through a single electronic system here.

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity?

No, according to Article 23 of the Law "On Public Procurement" non-residents can also participle in procurement procedures.

Is there any requirement for 'local content'?

Participants of procurement procedures, irrespective of whether they are residents or not, should:

• comply with the requirements of the legislation on public procurement;

• submit proposals and documents that meet the requirements of the procurement documentation, and be responsible for the accuracy of the information provided;

• disclose information about the main beneficial owner; and

• conclude an agreement with the state customer in the event of success in the competition in the manner and within the time limits stipulated by law.

An affiliate of a participant is not entitled to participate in the same lot of the electronic store, auction, selection of the best offers and tender process.

The Legal Procurement Framework

What is the applicable procurement legislation?

• Law of the Republic of Uzbekistan "On Public Procurement" dated 22 April 2021

• Presidential Decree "On measures to implement the law of the Republic of Uzbekistan "On public procurements" dated 27 September 2018

• Presidential Decree "On measures to implement the law of the Republic of Uzbekistan "On additional measures to ensure transparency and increase the efficiency of public procurements" dated 2 July 2021

• Law of the Republic of Uzbekistan "On Public-Private Partnership" dated 10 May 2019

• Resolution of the Cabinet of Ministers of the Republic of Uzbekistan "On improving the procedure for implementing public-private partnership projects" dated 26 April 2020

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

No.

If so, how do these international trade agreements interact with the domestic procurement legislation?

Not applicable.

What types of procuring entity need to comply with the procurement legislation?

According to Article 19 of the Law "On Public Procurement", procuring entities can be divided into budget customers represented by:

• state bodies and institutions;

• budget organizations;

• recipients of budget funds allocated for the implementation of procurement procedures;

• state trust funds;

• other funds organized in budget organizations; and

• corporate customers represented by state enterprises and legal entities with a state share in their authorized capital in the amount of 50 percent or more; or total share of organizations financed from budget, grants or other external gratuitous assistance, as well as, total share of organizations carried out in the course of business activities of state customers in their authorized capital in the amount of 50 percent or more.

Which types of contracts are covered?

Sale-purchase contracts for goods and services. The thresholds are as follows:

[1] BCV – Base Calculation Value. As at the date of this Memorandum equals to UZS 300,000.

Are there any exemptions to competitive bidding?

Presidential Decree "On measures to implement the law of the Republic of Uzbekistan 'On public procurements'" dated 27 September 2018 provides the list of goods works and services, the purchase of which is carried out by a private customer under a direct contract

Moreover, Article 71 of Law of the Republic of Uzbekistan "On Public Procurement" indicates the possibility of direct contracting in some cases:

• public procurement of goods, works or services permitted from a single supplier included in the Register of single suppliers;

• public procurement of goods, works or services carried out under direct contracts on the basis of decrees and resolutions of the President of the Republic of Uzbekistan, resolutions of the Cabinet of Ministers of the Republic of Uzbekistan;

• public procurement of goods, works or services necessary to meet the needs of the Republic of Uzbekistan in order to address emergency situations;

• public procurement related to the appointment of a lawyer (representative) to participate in court proceedings;

• public procurement of the results of intellectual activity, such as works of science, literature and art, performances, phonograms, programs of on-air or cable broadcasting organizations, from a single person who has the exclusive right to this object of intellectual property; and

• public procurement of goods, works, or services, prices (tariffs) for which are regulated by the state.

Moreover, Article 72 regulates the use of single sourcing.

Public procurement from a single supplier can be carried out in the following exceptional cases:

• state procurement of technically complex goods (works, services) that have no analogues on the market and which can only be purchased from a single supplier;

• acquisition of cultural property;

• public procurement from entities defined as single suppliers in decrees and resolutions of the President of the Republic of Uzbekistan or resolutions of the Cabinet of Ministers of the Republic of Uzbekistan;

• state procurement of goods, works or services of a subject of natural monopoly; and

• the emergence of a need for works or services, the performance or provision of which can be carried out only by state authorities and administration in accordance with their powers or state institutions and organizations subordinate to them.

Are there any proposals to amend the applicable procurement legislation?

No.

Key procurement resources

• Special Information Portal of Government Procurement

• Electronic System of Public Procurements

Country Contact

Kien Trung Trinh
Partner, Tilleke & Gibbins (Vietnam) Ltd

Government Procurement

Where are government tenders advertised? Are there any different sources for government announcements of ‘green’ contracting opportunities?

Government tenders are officially advertised on the following websites/newspapers:

• The website of the Ministry of Planning and Investment of Vietnam.
  

• The website of Dau Thau newspaper – the press agency of the Ministry of Planning and Investment. Dau Thau newspaper is under the management of the Department of Public Procurement.
  

In addition to the above websites, enterprises can visit the website of each contracting authority  to follow their announcements of contracting opportunities, such as the website of the Ministry of Finance or Thua Thien Hue province.

Are there any requirements for bidders to be established in the jurisdiction in order to bid or execute a contract with the procuring entity?

By law, there are two types of bidding:

• International bidding: Bidding in which both foreign and domestic contractors and investors may participate; and

• Domestic bidding: Bidding in which only domestic contractors and investors may participate.

To participate in an international bidding process in Vietnam, a foreign bidder is required to:

• enter into a partnership with a domestic bidder/contractor; or

• use a domestic sub-bidder/contractor (unless the domestic bidder/contractor is not qualified to participate in any part of the procurement) for part of the work, if awarded.

In addition, a foreign bidder must satisfy the following conditions:

• Has a certificate of incorporation issued by the authority of the country where it is established and operating;

• Has independent accounting;

• Is not undergoing dissolution or bankruptcy process, or under insolvency status;

• Is registered on the national bidding network system;

• Will ensure competitiveness in bidding in line with the law;

• Is not banned from bidding for public procurement in Vietnam; and

• Is named in the shortlist if a shortlist has been selected.

For the avoidance of doubt, a foreign bidder/contractor means an entity established under foreign law or an individual of foreign nationality; whilst a domestic bidder/contractor means an entity established under Vietnamese law or individual of Vietnamese nationality.

Is there any requirement for ‘local content’?

Yes, there are requirements for “local content” or “local element” as discussed in our answer above.

What is the applicable procurement legislation?

The key applicable procurement legislation includes:

• Law on Bidding No. 43/2013/QH13 passed by the National Assembly of Vietnam on 26 November 2013 as amended in 2016, 2017, 2019, 2020 and 2022 ("Law on Bidding")

• Law on Public-Private Partnership Investment No. 64/2020/QH14 passed by the National Assembly of Vietnam on 18 June 2020 as amended in 2022 ("Law on PPP")

• Decree No. 63/2014/ND-CP of the Government dated 26 June 2014 detailing the implementation of several provisions of the Law on Bidding regarding the selection of contractors ("Decree 63")

• Decree No. 25/2020/ND-CP of the Government dated 28 February 2020 providing details for implementation of a number of articles of Law on Bidding regarding investors ("Decree 25")

• Decree No. 95/2020/ND-CP of the Government dated 24 August 2020 guiding the implementation of procurement under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), amended by Decree No. 09/2022/ND-CP of the Government dated 12 January 2022 (together, "Decree 95")

• Decree No. 35/2021/ND-CP of the Government dated 29 March 2021 guiding details and implementation of the Law on PPP ("Decree 35")
  

Has your country ratified the WTO Government Procurement Agreement (GPA), or any bilateral trade agreement with Government Procurement commitments?

Vietnam has not ratified the WTO Government Procurement Agreement. However, there are certain international agreements to which Vietnam is a member state containing government procurement commitments, such as:

• Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP);

• EU-Vietnam Free Trade Agreement (EVFTA); and

• UK-Vietnam Free Trade Agreement (UKVFTA).

If so, how do these international trade agreements interact with the domestic procurement legislation?

The Government of Vietnam is taking necessary steps to localize the international agreements for ease of implementation. More specifically, the Vietnamese government issued Decree 95 for the implementation of the CPTPP, EVFTA and UKVFTA with regard to government procurement.

It is worth noting that if a local law (e.g., the Law on Bidding) conflicts with an international agreement to which Vietnam is a member state, the international agreement will prevail.

What types of procuring entity need to comply with the procurement legislation?

In general, the law does not specify which type of procuring entity must comply with the procurement legislation; instead, the legislation regulates types of procurement to be governed under the Law on Bidding (as explained in our answer below).

Which types of contracts are covered?

The following types of procurement are covered under Vietnamese bidding laws:

• Procurement financed by state funds aiming to maintain regular activities of public or semi-public entities;

• Procurement financed by state funds aiming to supply public products/services;

• Procurement of national reserve goods financed by state funds; and

• Services or goods provided in Vietnam for the purpose of implementation of overseas investment projects of Vietnamese enterprises which are financed by the state with 30% or more (or less than 30% but more than VND 500 billion) of the total investment capital of the projects.

Are there any exemptions to competitive bidding?

The Law on Bidding provides exemptions for competitive bidding namely:

• limited bidding;

• direct appointment of bidder;

• competitive quotation;

• direct procurement;

• self-implementation; and

• selection of bidders in special cases.

Below are some comments  on these exemptions:

• Limited bidding

Limited bidding will apply in cases where a bidding package has highly technical requirements or technical peculiarities for which only a limited number of bidders are capable of satisfying the requirements of the bidding package.

• Direct appointment

The direct appointment of contractor is applied in certain cases, including:

• to meet urgent demand as regulated by law;

• to ensure compatibility with technologies or IP rights of a previous contractor that cannot be purchased from other bidders; and

• to procure public products and services where the package price is limited by law.

• Competitive offer is applicable in the following cases:

• Procurement of non-consulting services which are commonly used and simple;

• Procurement of goods which are commonly used goods, readily available on the market, have standardized technical features and are similar to each other in quality; and/or

• Procurement of construction and installation of simple works with approved construction drawing design.

• Direct procurement applies to bidding packages for procurement of similar goods for the same project (or another project) satisfying all the following conditions:

• The bidder has won the bid through open or limited bidding and has signed a similar contract(s) for the previous bidding package.

• The bidding package has similar content and nature, and has a scale of less than 130% of the bidding package which was contracted previously.

• The unit price of the parts of the bidding package applying direct procurement must not exceed the unit price of the corresponding parts of the similar bidding package signed with the previous contract.

• The time period for the previously signed contract until the approving date of the current package must not exceed 12 months.

• Self-implementation is applied to packages of projects if the entity that directly manages and uses such bidding packages has technical and financial capability, and experience satisfying the requirements of the bidding packages.

• Selection of bidders in special cases

In a bidding package with particular requirements for which the selection of bidders via open bidding or via the forms stipulated in the bullet points  above cannot be applied, the responsible person may submit the plan for selection of a special contractor to the Prime Minister for determination.

Are there any proposals to amend the applicable procurement legislation?

There is a plan to amend the Law on Bidding. On 15 June 2022, the Ministry of Planning and Investment issued the revised draft law for public comment. The amended Law on Bidding is expected to be passed by the National Assembly of Vietnam in 2023.

Key procurement resources

See above.