Section 37, The Public Procurement Act, 2004

(1) Public procurement shall be undertaken by means ofadvertised open bid proceedings, to which equal access shall be provided to all eligible and qualified bidders without discrimination, subject only to the exceptions provided in sections 38, 39, 40 and 41. (2) It is not permitted artificially to divide procurement with the intention of avoiding the monetary thresholds established under to this Act or the regulations or other instruments issued for the implementation of this Act. (3) If the procuring entity uses a method of procurement other than advertised open bidding or, in the case of procurement of consultant services, a method other than request for proposals, it shall note in the record of the procurement proceedings the grounds for the choice of the procurement method. (4) When the participation of the procurement end-user or beneficiary community may result in enhancing the economy, quality or sustainability of the service to be procured, or the very objective of the project is to create employment and involvement of the beneficiary community, such end-user or community may participate in the delivery of services under procedures to be defined in the regulations. (5) In the cases referred to in subsection (4), procurement may be carried out by force account, in which the procurement is carried out with self-supervision, utilising the procuring entity’s own personnel and equipment or those of another government institution. (6) The cases in which force account may be utilised include, separately or in combination with any activity– (a) that, in view of its size, nature, location or scattered locations (with no local suppliers available), financing or high demobilization costs for outside suppliers, does not attract bidders, at least not at a reasonable price; (b) that cannot be calculated, or determined in detail in advance or both, such that, if it were carried out by a supplier, contractor, or consultant, it would have to bear a large risk; (c) where the risk of unavoidable work interruptions is better borne by the procuring entity than by a supplier or contractor; (d) where it has been demonstrated that force account is the only practical method for constructing and maintaining works under special circumstances; (e) for a pilot project of a particular nature for development of a technology or work method or both that cannot yet be carried out by a supplier; and (f) for works that must be carried out without disrupting existing operations by the procuring entity’s crew familiar with those operations. (7) Where any procurement of goods, sub-contracted works or services is required to supplement the force account activity, that procurement shall be carried out in accordance with the appropriate provisions of this Act. Choice of procurement method. 36 37