About tenders for the supply of the goods, performance works, provision of services for the state needs
THE LAW
OF TURKMENISTAN
On amendments to the law of Turkmenistan
"About tenders for the supply of the goods, performance works,
provision of services for the state needs»
(Bulletin of the Mejlis of Turkmenistan, 2016, no. 2, article 99)
I. The second part of article 2 of the Law of Turkmenistan "About tenders for the supply of the goods, performance of works, provision of services for the state needs", adopted on December 20, 2014 (Bulletin of the Mejlis of Turkmenistan, 2014, No. 4, article 159; 2015, No. 2, article 70; 2016, No. 1, article 15), to add the following paragraph:
"12) purchase of the goods for their own needs by self-supporting ministries, departments, administrations (hyakimliks) and their subordinate enterprises, institutions from the Ministry of Trade and Foreign Economic Relations of Turkmenistan and its subordinate trade enterprises.".
II. This Law comes into force from the date of its official publication.
President Gurbanguly
of Turkmenistan Berdimuhamedov
Ashgabat
June 18, 2016
No. 415-V.
THE LAW
OF TURKMENISTAN
About amendments and additions to the Law of Turkmenistan "About tenders for the supply of the goods, performance of works, provision of services for the state needs»
(Bulletin of the Mejlis of Turkmenistan, 2016, no. 1, article 15)
I. To make the following amendments and additions to the Law of Turkmenistan "About tenders for the supply of the goods, performance of works, provision of services for the state needs", adopted on December 20, 2014 (Bulletin of the Mejlis of Turkmenistan, 2014, No. 4, article 159; 2015, No. 2, article 70):
1. The second item of paragraph 2 of article 1 should be amended as follows:
"When financing supplies from the state budget of Turkmenistan, including from non-budgetary funds of budgetary institutions (except for supplies of chemicals, reagents, chemical products, medicines, including veterinary, medical, laboratory equipment, construction and reconstruction, major repairs, design work), the tender organizer is the Ministry of Finance of Turkmenistan;".
2. In the second part of article 2:
paragraph 7 should be amended as follows:
"7) under the barter agreements and other agreements carried out on the basis of decisions of the Cabinet of Ministers of Turkmenistan or in agreement with it»;
to add with paragraphs of the following content:
"10) the goods, works, services, prices and tariffs for which for the internal market are established by the Cabinet of Ministers of Turkmenistan;
11) for budgetary institutions - products (works, services) of their own production by state enterprises, institutions and organizations, consumer societies, as well as legal entities in whose Authorized Fund the state's share exceeds 50 percent or more;".
3. In paragraph 1 of the first part of article 7, replace the words "Tender Commissions" with the words "Tender Commission".
4. In paragraph 6 of the second part of article 9 of the text of the Law in the state language, the word "kesmekligi" should be replaced with the word "berilmegini".
5. Paragraph 4 of the third part of article 17 and article 20 shall be deemed null and void.
6. In the second paragraph of the fourth part of article 21 after the word "all" add the word "potential".
7. In the title of article 22 in the text of the Law in the state language, the word "resminamalarynyň" to replace with words "ýüz tutmalarynyň".
8. In paragraph 9 of part one of article 27, delete the words "or supply from a single source".
9. After article 27 add the following article:
Article 271. The features of the tenders for the financing of deliveries at the expense of the State budget of Turkmenistan
If the tender is organized by the Ministry of Finance of Turkmenistan when financing supplies from the state budget of Turkmenistan (hereinafter referred to as the tender organizer):
1) the customer is also a participant in the tender procedures, except for the participants provided for in the first part of article 7 of this Law;
2) the customer:
a) shall submit the tender request to the organizer of the tender for the conduct of the tender for deliveries that are envisaged in the future, and is responsible for its validity;
b) sets the terms of delivery for the tender and the amount of security for the performance of the delivery contract);
c) in the cases established by the first part of article 16 of this Law, conducts preliminary qualification of potential suppliers (contractors);
3) the organizer of the tender is not subject to sub-clauses "b" and "c" of paragraph 3, paragraph 7 of article 8 and part one of article 22 of this Law;
4) the tender organizer, in addition to the functions established by article 8 of this Law, also performs the following functions:
a) on the basis of the decision taken by the Tender Commission on the conclusion of a supply contract with the Offeror, the tender bid (quotation) of which is recognized as the most economically advantageous, and the approved Minutes on the results of the tender, prepare a conclusion on the implementation of deliveries, which is signed by the tender organizer and the customer;
b) keep a log of the registration, which records the registration (refusal to register) of the tender (quotations);
c) sets the exact date and time of the final deadline for bid applications (quotations) , which must be at least fifteen working days from the date of publication of the notice about the tender or sending an invitation to participate in the tender.
In exceptional cases, on the basis of a reasonable request from the customer, the tender with limited participation may be held in a shorter time frame;
5) the Tender Commission is not subject to paragraph 4 of the second part of article 9 of this Law;
6) the Tender Commission, in addition to the functions established by article 9 of this Law, also decides on the conclusion of a supply contract with the Offeror, whose tender bids (quotation) is recognized as the most cost-effective.".
II. This Law shall enter into force on the date of its official publication.
President Gurbanguly
of Turkmenistan Berdimuhamedov
Ashgabat
January 12, 2016
No. 330-V.
THE LAW
OF TURKMENISTAN
About amendments and additions to the Law of Turkmenistan
"About tenders for the supply of the goods, performance of works,
provision of services for the state needs»
(Bulletin of the Mejlis of Turkmenistan, 2015, no. 2, article 70)
I. Make the following amendments and additions to the Law of Turkmenistan "About tenders for the supply of the goods, performance of works, provision of services for the state needs", adopted on December 20, 2014 (Bulletin of the Mejlis of Turkmenistan, 2014, No. 4, article 159):
1. Paragraph 2 of article 1 should be amended with the following paragraph:
"In some cases, when financing supplies from the state budget of Turkmenistan, the Cabinet of Ministers of Turkmenistan may establish other tender organizers;".
2. In article 2:
add the second part with items 6, 7, 8 and 9 as follows:
"6) under the supply agreements for the export of natural gas under the clearing system of mutual settlements carried out on the basis of decisions of the Cabinet of Ministers of Turkmenistan;
7) under the barter agreements carried out on the basis of decisions of the Cabinet of Ministers of Turkmenistan;
8) in cases when the contractor engages subcontractors to perform works (provide services);
9) in exceptional cases, in connection with urgent production needs, – in agreement with the Cabinet of Ministers of Turkmenistan.»;
after the second part add the following part:
"21. This Law applies to tenders announced in the mass media from the date of entry into force of this Law.".
3. The text of article 4 to read as follows:
"State regulation and control in the field of organizing tenders for the supply of the goods, performance of works, provision of services for the state needs are carried out by the Cabinet of Ministers of Turkmenistan and the relevant state bodies within their competence established by the legislation of Turkmenistan.".
4. In article 5:
paragraph 1 to read as follows:
"1) determines the state policy;»;
paragraph 3 to read as follows:
"3) approves the procedure for conducting tenders for the selection of suppliers of the goods, works, services for the state needs by the organizer of the tender (economic sector);»;
paragraph 4 to read as follows:
"4) on the proposal of the tender organizer, agree on the Minutes on the results of the tender for the selection of a supplier (contractor) held in accordance with paragraph 3 of the second part of article 18 of this Law;".
5. With the entry into force of this Law, article 6 shall be deemed null and void.
6. In article 8:
paragraph 2 to read as follows:
"2) in the cases established by the first part of article 16 of this Law, provides pre-qualification of potential suppliers (contractors);»;
in paragraph 3:
sub-item "c" to read in the following wording:
"c) the amount of security for the performance of the delivery contract);»;
add the following subparagraph "d" :
"d) the amount of the special (tender) fee. A preferential amount of a special (tender) fee may be established for public organizations of disabled people in Turkmenistan;»;
paragraph 6 to read as follows:
"6) ensures the evaluation of submitted tender bids (quotations);»;
after paragraph 7 to add the following paragraph:
"71) develops the procedure for conducting tenders for the selection of suppliers of the goods, works, services for the state needs for the organizer of the tender (economic sector) and submits it for approval to the Cabinet of Ministers of Turkmenistan;»;
paragraph 8 to read as follows:
"8) submit for approval to the Cabinet of Ministers of Turkmenistan the Minutes on the results of the tender for the selection of a supplier (contractor) held in accordance with paragraph 3 of the second part of article 18 of this Law;".
7. In article 9:
to add the following paragraph to the second part after paragraph 4:
"41) in the cases established by the first part of article 16 of this Law, conducts preliminary qualification of potential suppliers (contractors);»;
add the following the third part:
"3. The Tender Commission is entitled to analyze the activities of potential suppliers (contractors), Offerors during their participation in the tender procedures, as well as suppliers (contractors) during the execution of the delivery contract to meet the requirements imposed on them by this Law and the terms of the delivery contract.
The Tender Commission, if during the analysis of potential suppliers (contractors), Offerors and suppliers (contractors) who are unfairly fulfilling the above requirements, is entitled to deprive them of participation in the tender procedures for a certain period of time, as well as to send information about them to other tender organizers and relevant state bodies.".
8. In the first part of article 12:
with the entry into force of this Law paragraph 5 shall be deemed invalid;
to add the following paragraph:
"In some cases, the Cabinet Of Ministers of Turkmenistan may also set additional requirements (restrictions) for potential suppliers.".
9. In article 14:
in paragraph 2 of part one, the words "or the authorized body" should be deleted;
the second part to read as follows:
"2. The tender organizer is not entitled to refuse to participate in the tender on the basis of providing inaccurate or incomplete information in relation to the qualification data, provided that the Offeror will eliminate these shortcomings within the period set by the Tender Commission.".
10. In article 17:
the first part to read as follows:
"1. The tender for selecting a supplier (contractor) goods, works, services for the state needs is carried out by the organizer of the tender in accordance with this Law and the procedure of holding tenders for selection of suppliers of the goods, works, services for the state needs according to the organizer of the tender (industries), approved by the Cabinet of Ministers of Turkmenistan. In this order, requirements must be provided for the supplier (contractor) to supply innovative and high-tech goods, works and services.»;
the first item of paragraph 2 of the fifth part to read as follows:
"when conducting the tender for objects of state significance, in agreement with the Cabinet of Ministers of Turkmenistan, involve independent investment consultants or experts in the tender procedures;".
11. Paragraph 3 of the second part of article 18 to read as follows:
"3) are carried out in relation to objects of state significance.".
12. Paragraph 1 of article 20 to read as follows:
"1) if the supplier (contractor) is:
a) public organization of disabled people of Turkmenistan;
b) the state enterprise (organization) with which the customer has established a well-established economically profitable production and economic relations;".
13. In article 24:
to delete the second part;
the third part shall be considered the second part and the words "immediately announced to persons present at the opening of envelopes with tender bids (quotations), and" shall be deleted.
14. In article 25:
the second part to read as follows:
"2. Changes in the substance of tenders in the direction of deterioration (quotations), including price changes, are not allowed. In this case, the tender organizer is entitled to negotiate with the Offeror to reduce the offered prices and (or) to clarify certain provisions of tender bids (quotations).»;
in the fifth part, to replace the words "particularly important state objects "with the words" objects of state significance".
15. The first and second parts of article 28 to read as follows:
"1. The contract of delivery (contract) between the organizer of the tender (customer) and the winner of the tender is concluded in writing in accordance with the legislation of Turkmenistan.
2. If the winner of the tender refuses to enter into a delivery contract or fails to provide security for the performance of the delivery contract, the Offeror from among other bidders whose offer and qualifications best meet the terms of delivery may be recognized as the winner, or a second tender may be held by the tender organizer.".
16. In the second part of article 30, after the words "tender organizer", to add the word "(customer)".
17. The second part of article 31 to read as follows:
"2. The decision of the tender organizer made in connection with the appeal of the decision of the Tender Commission shall be attached to the Minutes on the results of the tender.".
II. This Law comes into force on July 1, 2015.
President Gurbanguly
Turkmenistan Berdimuhamedov
Ashgabat
May 23, 2015
No. 236-V.
THE LAW
OF TURKMENISTAN
About tenders for the supply of the goods, performance
of works, provision of services for the state needs
(Bulletin of the Mejlis of Turkmenistan, 2014, no. 4, article 159)
(With amendments and additions made by the Laws of Turkmenistan
from 23.05.2015 № 236-V 12.01.2016 № 330-V, from 18.06.2016 № 415-V 20.03.2017 № 529-V, and from 09.06.2018 № 41-VI)
This Law regulates relations arising during tenders for the selection of suppliers (contractors) in order to supply goods, perform works and provide services for the state needs, and is aimed at developing fair competition.
CHAPTER I. GENERAL PROVISIONS
Article 1. Basic concept
For the purposes of this Law the following basic concepts are used:
1) tender – the method of selecting the supplier (contractor) of the goods, works, and services for the state needs on a competitive basis in accordance with the procedure provided for by this Law;
2) tender organizer - ministries, departments, administrations (khakimliks) of regions (velayats) and Ashgabat city, as well as legal entities that do not have a higher organization.
When financing supplies from the state budget of Turkmenistan, including from extra-budgetary funds of budgetary institutions (except for supplies of chemicals, reagents, chemical products, medicines, including veterinary, medical, laboratory equipment, construction and reconstruction works, major repairs, design works), the tender organizer is the Ministry of Finance and Economy of Turkmenistan;
The Cabinet of Ministers of Turkmenistan may establish other tender organizers;
3) customer – the state enterprises, organizations, institutions that purchase goods, works or services in order to perform the functions assigned to them by the state;
4) potential supplier (contractor) – an individual engaged in business activities without forming the legal entity - an individual entrepreneur, or the legal entity that is entitled to supply goods, perform works and provide services in Turkmenistan;
5) offeror – the potential supplier (contractor) who submitted to the tender organizer the constituent offer:
a) the tender request with tender and qualification documentation (hereinafter referred to as the tender);
b) price quotation (hereinafter - quotation);
6) supplier (contractor) – an Offeror who is the winner of the tender and has signed the contract for the supply of the goods and (or) the contract for the performance of works and (or) the provision of services;
7) delivery – delivery of the goods, contract for performance of works, rendering of services for the state needs by suppliers (contractors) on the terms established by this Law, in whole or in part at the expense of state funds;
8) goods – items (things), including semi-finished products or raw materials in a solid, liquid or gaseous state, electric and thermal energy, intellectual property, as well as proprietary rights, with which transactions may be made in accordance with the legislation of Turkmenistan;
9) works – any activity related to construction, as well as other work, the results of which have a material expression, and defined as such by the legislation of Turkmenistan;
10) services – activities aimed to satisfying the needs of the customer, the results of which are not material, are realized and consumed in the course of this activity, any subject of supply, in addition to goods and works.
Article 2. Legislation of Turkmenistan about tenders for the supply of the goods, performance of works, provision of services for the state needs
1. The legislation of Turkmenistan about tenders for the supply of the goods, performance of works, and provision of services for the state needs is based on the Constitution of Turkmenistan and consists of this Law and other regulatory legal acts of Turkmenistan.
2. The provisions of this Law do not apply to deliveries:
1) constituting the state secret;
2) related to the prevention and liquidation of emergency situations;
3) in the amount below the established threshold amounts of deliveries for the relevant sectors of the economy;
4) regulated by the law of Turkmenistan "about hydrocarbon resources»;
5) consulting services, except for the provision provided for in paragraph 2 of the fifth part of article 17 of this Law.
6) under supply agreements for the export of natural gas under the clearing system of mutual settlements carried out on the basis of decisions of the Cabinet of Ministers of Turkmenistan;
7) under barter agreements and other agreements carried out on the basis of decisions of the Cabinet of Ministers of Turkmenistan or in agreement with it;
8) in cases when the contractor engages subcontractors to perform works (provide services);
9) in exceptional cases, in connection with urgent production needs – in agreement with the Cabinet of Ministers of Turkmenistan;
10) goods, works, services, prices and tariffs for which for the internal market are established by the Cabinet of Ministers of Turkmenistan;
11) for budgetary institutions - products (works, services) of their own production by state enterprises, institutions and organizations, consumer societies, as well as legal entities in whose Authorized Fund the state's share exceeds 50 percent or more.
12) purchase of the goods for their own needs by self-supporting ministries, departments, administrations (hyakimliks) and their subordinate enterprises, institutions from the Ministry of Trade and Foreign Economic Relations of Turkmenistan and its subordinate trade enterprises.
21. This Law applies to tenders announced in the mass media from the date of entry into force of this Law.
3. The tender organizer may not divide goods, works or services into parts in order to reduce the amount of deliveries in order to avoid falling under the jurisdiction of this Law.
The forth part is excluded according to the law of Turkmenistan dated 20.03.2017 No. 529-V.
Article 3. Purposes of this Law
The purposes of this Law are as follows:
1) ensuring efficient use of public funds;
2) development of competition between potential suppliers (contractors);
3) expansion of participation in the supply of small and medium-sized businesses of Turkmenistan, public organizations of disabled people of Turkmenistan as a measure of state support;
4) ensuring the openness, transparency and efficiency of tender procedures, ensuring their compliance with international standards and generally accepted business practices in this area;
5) increasing the responsibility of suppliers (contractors) for the performance of obligations under contracts of delivery of the goods and (or) contract to perform works and (or) rendering of services (hereinafter – supply contract (agreement).
CHAPTER II. THE STATE REGULATION AND CONTROL IN THE FIELD OF ORGANIZATION OF TENDERS FOR THE SUPPLY OF THE GOODS, PERFORMANCE OF WORKS, PROVISION OF SERVICES FOR THE STATE NEEDS
Article 4. The authorities that carry out state regulation and control in the field of organizing tenders for the supply of the goods, performance of works, and provision of services for the state needs
The state regulation and control in the field of organizing tenders for the supply of the goods, performance of works, and provision of services for the state needs are carried out by the Cabinet of Ministers of Turkmenistan and relevant state bodies within their competence established by the legislation of Turkmenistan.
Article 5. Competence of the Cabinet of Ministers of Turkmenistan
Cabinet of Ministers of Turkmenistan in the field of organizing tenders for the supply of the goods, performance of works, provision of services for the state needs shall:
1) determine the state policy;
2) set the threshold amounts of deliveries by sectors of the economy, starting from which the organization and conduct of tender procedures are mandatory;
3) approve the procedure for conducting tenders for the selection of suppliers of the goods, works, services for the state needs by the organizer of the tender (economic sector);
4) on the proposal of the tender organizer, approve the Minutes on the results of the tender for the selection of a supplier (contractor) held in accordance with paragraph 3 of the second part of article 18 of this Law;
5) exercise other powers in accordance with the legislation of Turkmenistan.
Article 6 became invalid from 01.07.2015 according to the law of Turkmenistan No. 236-V from 23.05.2015.
CHAPTER III. PARTICIPANTS OF THE TENDER PROCEDURES
Article 7. Participants of the tender procedures
1. Participants of the tender procedures are:
1) Tender Commission;
2) Organizer of the tender;
3) Potential supplier (contractor);
4) Tenderer;
5) Supplier (contractor).
2. Bidders are required to observe the principle of confidentiality of information submitted and used that contains information that is a commercial or other legally protected secret.
Article 8. Organizer of the tender
Organizer of the tender:
1) shall organize and conduct the tender based on the customer's request for the supply of the goods, works and services.
The customer submits an application for the supply of the goods, works, and services in accordance with the procedure established by the tender organizer;
2) in the cases established by the first part of article 16 of this Law, provides pre-qualification of potential suppliers (contractors);
3) sets:
a) the form of tender;
b) terms of delivery by tender;
c) the amount of security for the performance of the delivery contract);
d) the amount of the special (tender) fee. A preferential amount of a special (tender) fee may be established for public organizations of disabled people in Turkmenistan;
4) develops the tender documentation, as well as familiarizes potential suppliers (contractors) with the tender documentation and provides the necessary explanations;
5) ensures that, in accordance with the selected form of tender, notices of tenders for supplies are published in the mass media or send a written invitation to participate in the tender (or request for quotation) to potential suppliers (contractors);
6) ensures the evaluation of submitted tender bids (quotations);
7) decides to enter into a supply contract with the Offeror, the tender bids (quotation) of which is recognized as the most economically advantageous;
71) develops the procedure for conducting tenders for the selection of suppliers of the goods, works and services for the state needs for the organizer of the tender (economic sector) and submits it for approval to the Cabinet of Ministers of Turkmenistan;
8) submits for approval to the Cabinet of Ministers of Turkmenistan the Minutes on the results of the tender for the selection of a supplier (contractor) held in accordance with paragraph 3 of the second part of article 18 of this Law;
9) considers complaints from potential suppliers (contractors) or Offerors and makes decisions on them;
10) declares the tender invalid or cancels the tender in the cases provided for in article 26 of this Law;
11) provides:
a) measures to comply with the requirements of the legislation of Turkmenistan on countering the legalization of proceeds from crime and the financing of terrorism;
b) collection and storage for five years of tender bids (quotations), as well as other documents related to tender procedures and delivery;
12) performs other necessary actions related to conducting tender procedures in accordance with the legislation of Turkmenistan.
Article 9. Tender Commission
1. To conduct tenders, the tender organizer creates the Tender Commission consisting of at least five people.
2. The Tender Commission performs the following functions:
1) decides on the terms of bid applications (quotations) , and, if necessary, on the extension of these terms;
2) accepts the tender bids (quotation), and carries out their registration;
3) makes the decision to refuse to participate in the tender in the cases provided for by the first part of article 14 of this Law;
4) keeps a log of registration, which records the registration (refusal to register) of the tender bids (quotation), prequalification applications;
41) in the cases established by the first part of article 16 of this Law, conducts preliminary qualification of potential suppliers (contractors);
5) within the period specified in the tender documentation, in the order of priority of registered applications, open envelopes with the tender and qualification documentation of the Offerors, and draw up the Minutes;
6) assess tenders using the procedures and criteria provided for in the tender documentation in accordance with this Law;
7) makes the decision on the selection of the winner or makes another appropriate decision on the results of the tender, as well as approves the results of the tender by drawing up the Minutes;
8) performs other necessary actions related to conducting tender procedures in accordance with the legislation of Turkmenistan.
3. The Tender Commission is entitled to analyze the activities of potential suppliers (contractors), Offerors during their participation in the tender procedures, as well as suppliers (contractors) during the execution of the delivery contract to meet the requirements imposed on them by this Law and the terms of the delivery contract.
The Tender Commission, if during the analysis of potential suppliers (contractors), Offerors and suppliers (contractors) who are unfairly fulfilling the above requirements, is entitled to deprive them of participation in the tender procedures for a certain period of time, as well as to send information about them to other tender organizers and relevant state bodies.
Article 10. Potential supplier (contractor)
1. The potential supplier (contractor) to participate in the tender in accordance with the tender form declared by the tender organizer, shall submit the tender request (quotation) to the Tender Commission.
2. The potential supplier or contractor is entitled to receive comprehensive information from the Tender Commission about the conditions and procedure for conducting tender procedures and deliveries.
Article 11. Offeror
1. The Offeror, recognized as the winner of the tender, is entitled to conclude a supply contract (agreement) on the terms of the tender bid (quotation) submitted by it.
2. After signing the delivery contract, the Offeror acquires the status of supplier (contractor).
3. Public organizations of disabled people in Turkmenistan are given priority based on a set of criteria for selecting the winner of the tender, in other things being equal.
4. The status of the Offeror is lost in the following cases:
1) at the request of the Offeror at any preparatory stage;
2) due to failure to pass pre-qualification;
3) due to violation of this Law or the terms of the tender.
CHAPTER IV. REQUIREMENTS FOR THE PARTICIPANTS OF TENDER PROCEDURES
Article 12. Qualification requirements for potential suppliers (contractors)
1. Potential suppliers (contractors):
1) must have civil legal capacity, legal capacity, including licenses, certificates or other permits (agreements with co-executors or subcontractors who have such licenses, certificates or other permits, which the contractor intends to involve in the performance (provision) of part of the works, services), if their necessity is established by the legislation of Turkmenistan for the purpose of supplying goods, performing works, rendering services;
2) must have professional and technical competence, experience and reputation, financial resources, equipment and other material capabilities, as well as have a staff of specialists with the necessary level of professional qualification and experience to fulfill obligations under the supply contract);
3) must be solvent, not have a stable (more than three months) debt on taxes and other mandatory payments to the state budget of Turkmenistan;
4) must not have signs of insolvency (bankruptcy), be in the process of bankruptcy as of the last reporting date; must not be in the process of liquidation or reorganization, and their business activities must not be suspended in accordance with the legislation of Turkmenistan;
Paragraph 5 became invalid from 01.07.2015 according to the law of Turkmenistan No. 236-V from 23.05.2015.
6) they must not be persons in respect of whom there is a conflict of interest.
In some cases, the Cabinet of Ministers of Turkmenistan may also set additional requirements (restrictions) for potential suppliers.
2. The tender organizer is entitled to require potential suppliers (contractors) to submit documentary evidence of their compliance with the qualification requirements specified in the first part of this article.
3. Qualification requirements established by the first part of this article:
1) set out in the qualification (prequalification - in the case of prequalification procedure) tender documentation for attracting bids (quotations);
2) apply to all persons whom the potential supplier (contractor) intends to engage as subcontractors or co-executors.
In the case established by paragraph 3 of the third part of article 17 of this Law, the requirements established by this part may not be applied by the tender organizer.
4. The burden of proof of qualification to participate in the tender is on the Offeror.
Article 13. Powers of the tender organizer to determine the range of potential suppliers (contractors) to participate in tender procedures
1. In the case that in the domestic market of Turkmenistan:
1) there are enough potential suppliers (contractors) to supply certain types of the goods, works, services, the tender organizer may restrict participation in the tender procedures of potential suppliers (contractors) of Turkmenistan or set the priority of state enterprises (organizations) and (or) public organizations of disabled people of Turkmenistan;
2) there are not enough potential suppliers (contractors) to supply certain types of the goods, works, and services, the tender organizer may restrict participation in the tender procedures of legal entities with foreign investments, foreign legal entities and (or) their branches in Turkmenistan.
2. If the subject of supply is goods, works, services produced (performed, rendered) in Turkmenistan, the tender organizer is entitled to limit the list of potential suppliers (contractors) to small and medium-sized businesses in Turkmenistan, and (or) set conditions for using only local labor resources and (or) raw materials.
3. The tender organizer shall notify potential suppliers (contractors) about restrictions established by the first and second parts of this article prior to the start of tender procedures in accordance with the procedure established by this Law.
Notification about such restrictions in the process of selecting of suppliers (contractors) and entering into the supply contract (sub-contract) is not subject to cancellation.
4. It is not allowed to restrict participation in the tender of potential suppliers (contractors) depending on whether they are individuals or legal entities, as well as on the organizational and legal form, type and (or) form of their ownership.
Article 14. Refusal to participate in the tender
1. The decision to refuse to bidders to participate in the tender is made in the following cases:
1) if they:
a) submitted the tender bids (quotation) later than the deadline, did not pass prequalification or their tender bids (quotation) does not meet the requirements for the tender documentation;
b) knowingly provided false, incomplete, inaccurate or knowingly false information in the qualification documents, as a result of which at least one tender or delivery contract was cancelled during the three years preceding the publication of the notice of tender;
c) do not recognize and (or) correct arithmetic errors established by the Tender Commission;
d) do not meet the qualification requirements of this Law for potential suppliers (contractors);
e) are members (affiliates) of another Offeror;
f) refused to enter into the supply agreement (contract);
g) improperly performed or cancelled at least one delivery contract during the three years preceding the date of publication of the tender notice, unless this was due to force majeure;
2) cancellation of the tender application when establishing the facts of using confidential information received from officials of the tender organizer or manipulation in the market of the goods, works and services.
2. The tender organizer is not entitled to refuse to participate in the tender on the basis of providing inaccurate or incomplete information in relation to the qualification data, provided that the Offeror will eliminate these shortcomings within the period established by the Tender Commission.
Article 15. Conflict of interest
1. Civil servants are prohibited from participating in tender procedures as potential suppliers (contractors).
2. The individual may not represent the tender organizer or perform other duties related to the tender procedures in the following cases:
1) if he is closely related or has property relation to the supplier (contractor) - an individual, representative or official of the legal entity.
The concept of "close relationship or property relation" is used in the meaning defined by the labor legislation of Turkmenistan;
2) during the three years preceding the date of publication of the notice of tender, was an employee or official of any supplier (contractor) participating in the tender procedures.
Article 16. Preliminary assessment of the qualifications of potential suppliers (contractors)
1. Preliminary qualification assessment and selection of potential suppliers (contractors) - prequalification procedures are carried out in the period before the set date of the tender:
1) when conducting the tender with limited participation;
2) in other cases, by a reasoned decision of the tender organizer.
2. Potential suppliers or contractors are notified about the prequalification procedures and their results in accordance with the third and fifth parts of this article.
3. The notification of prequalification procedures must contain:
1) information about the name, legal address and contact persons of the tender organizer;
2) information about the nature and quantity of the goods to be delivered, the nature, quantity and place of work to be performed, or the nature of services and the place where they are to be provided;
3) information about the time of delivery of the goods or completion of works, or the schedule for rendering services;
4) information about the place and deadline for submitting the application for prequalification and the prequalification documentation attached thereto;
5) the statement, which is not subject to subsequent modification, that potential suppliers or contractors can participate in tender procedures regardless of the country of origin, or the statement on the restriction of participation in accordance with the first or second parts of article 13 of this Law;
6) the list of documents confirming compliance with prequalification requirements for potential suppliers (contractors) – at the request of the tender organizer;
7) information about the method and place of obtaining prequalification documentation;
8) description of criteria and procedures for evaluating the qualifications of potential suppliers (contractors) established by the first part of article 12 of this Law;
9) types of works and services, as well as their limits, which may be transferred for performance to subcontractors or co-executors;
10) information about the foreign language that is allowed to be used in the prequalification procedure;
11) other information required by the tender organizer for evaluating the qualifications of potential suppliers (contractors) in accordance with this Law.
4. Only those potential suppliers (contractors) who have passed prequalification are allowed to participate in further tender procedures.
5. The tender organizer shall notify each potential supplier (contractor) about the results of their prequalification process within three business days from the date of making the decision about the results of prequalification procedures in accordance with the established procedure.
CHAPTER V: TENDER PROCEDURES
Article 17. Procedure and forms of the tender
1. The tender for selecting the supplier (contractor) of the goods, works, services for the state needs is carried out by the organizer of the tender in accordance with this Law and the procedure of holding tenders for selection of suppliers of the goods, works, services for the state needs according to the organizer of the tender (industries), approved by the Cabinet of Ministers of Turkmenistan. In this order, requirements must be provided for the supplier (contractor) to supply innovative and high-tech goods, works and services.
2. The selection of suppliers (contractors) is carried out by the Tender Commission based on the results of the tender.
3. Tenders are held in the following forms:
1) the tender with unlimited participation (an open tender);
2) the tender with limited participation (closed tender);
3) request for quotations;
paragraph 4 was declared invalid according to the law of Turkmenistan No. 330-V from 12.01.2016.
4. The tender may be pre-qualified or unqualified, primary or repeated.
5. The tender organizer is obliged to conduct tender procedures:
1) develop and approve tender and qualification documentation, as well as determine the procedure for financing works;
2) when conducting the tender for objects of state significance, in agreement with the Cabinet of Ministers of Turkmenistan, involve independent investment consultants or experts in the tender procedures;
The conclusion of the investment consultant and expert is recognized as reliable and has the recommendation character for the tender organizer for the purposes of tender procedures and deliveries.
6. Registration of documents related to tenders is carried out in the state language of Turkmenistan. The tender organizer may also decide to use a foreign language.
Article 18. Tender with unlimited participation. Tender with limited participation
1. When conducting the tender with unlimited participation, the number of potential suppliers (contractors) invited to participate in the tender is not limited, and they are entitled to submit tenders without restriction in accordance with this Law.
2. Tender with limited participation is conducted, if:
1) the costs required to review and evaluate a large number of tenders will not be commensurate with the cost of the goods delivered, work performed or services rendered;
2) the goods, works or services due to their technical complexity or specialized nature are available only to a limited number of potential suppliers (contractors);
3) are carried out in relation to objects of state significance.
3. When conducting the tender with limited participation, the tender organizer shall attract tender applications from potential suppliers (contractors) selected in accordance with article 16 of this Law, the number of which must be at least two.
Article 19. Inquiry of quotations
1. The quotation request is used when certain types of the goods, works, or services are delivered in accordance with the specification (with established technical parameters or quality standards) and is requested from at least three potential suppliers or contractors in order to ensure competition and effectively select the most cost-effective offer.
2. Each potential supplier or contractor is allowed to submit only one quotation without the right to change it.
Article 20 is recognized as invalid according to the law of Turkmenistan No. 330-V of 12.01.2016.
Article 21. Tender documentation
1. The tender organizer sends the tender documentation establishing the main provisions of the tender procedures no later than three working days following the day of receipt of the request from potential suppliers (contractors) for the provision of the necessary documents for the tender.
When conducting the tender with limited participation, the tender documentation, including specifications, is sent simultaneously with the invitation to participate in the tender.
In the case of prequalification procedures, the tender documentation is sent to all selected potential suppliers (contractors).
2. The tender documentation includes:
1) instructions for preparing tender bids (quotations);
2) criteria and methods for assessing the compliance of potential suppliers (contractors) with the qualification requirements established by article 12 of this Law;
3) requirements for documentary evidence that must be submitted by the Offerors to confirm their qualifications;
4) descriptions and necessary technical, qualitative and quantitative characteristics of the goods delivered, works performed or services rendered, including technical specifications, plans, drawings and sketches;
5) the list of possible additional services that may be included in the delivery contract);
6) the place where the work or services should be performed;
7) required terms of execution of the delivery contract;
8) description of all criteria, except for the price, that are used in evaluating bids by the tender organizer;
9) provisions defined by the tender organizer as necessary to be included in the delivery contract);
10) description of the part or parts (lots) of the goods, works, services for which tenders may be submitted in the amount not lower than the threshold amount of deliveries for the relevant branch of the economy;
11) the method of calculating and expressing the value of the tender, including specifying whether the price should contain elements other than the cost of the goods delivered, works performed or services rendered;
12) when submitting tenders in a freely convertible currency, if necessary, a method for comparing the prices of tenders expressed in this currency;
13) the amount of security for the performance of the delivery contract (agreement) and special (tender) fee;
14) requirements for:
a) the form, term and other main conditions for securing the performance of the delivery contract);
b) the main terms of payment of the special (tender) fee;
15) exact place and time of submission of tenders;
16) description of the procedure for providing explanations on the tender documentation requested by the potential supplier (contractor);
17) the period during which tenders are valid;
18) exact description of the place, date and time of opening envelopes with tender bids (quotations);
19) procedures used for opening envelopes with tender bids (quotations);
20) the foreign language in which, along with the state language of Turkmenistan, tender offers must be prepared (quotations);
21) surname, first name, position and address of one or more contact persons of the tender organizer authorized to communicate directly with the persons specified in paragraphs 3-5 of the first part of article 7 of this Law, as well as methods of communication;
22) notification about the right of the persons specified in paragraphs 3-5 of the first part of article 7 of this Law to appeal against the actions or decisions of the Tender Commission and (or) the tender organizer in the course of the tender and delivery;
23) the form, essential terms of the delivery agreement (contract) and terms of its signing;
24) other additional information required for certain categories of deliveries.
3. Changes and additions to the tender documentation in the period before the deadline for submission of tenders are not allowed.
4. The potential supplier or contractor may request clarification of the tender documentation from the tender organizer. The tender organizer must respond to such a request in writing no later than three business days from the date of receipt of the request, and simultaneously send copies of the explanation to other potential suppliers (contractors) who were provided with this tender documentation, without specifying the author of the request.
If the tender organizer holds a meeting with potential suppliers (contractors) or Offerors to clarify any questions regarding the tender documentation, the Minutes is drawn up based on the results of the meeting indicating the essence of the requests received during the meeting, as well as responses to them without specifying the authors of the requests. Copies of the minutes are immediately sent to all potential suppliers (contractors) who have received the tender documentation.
Article 22. Terms and form of bid applications (quotations)
1. The tender organizer sets the exact date and time of the final deadline for bid applications (quotations), which should be:
1) when conducting tender procedures with unlimited participation – no less than thirty working days from the date of publication of the notice about the tender;
2) when conducting tender procedures with limited participation – no less than twenty working days from the date of sending the invitation to participate in the tender.
2. The tender bid (quotation) is submitted by the potential supplier (contractor) in writing and in a sealed envelope with its signature, certified with a mastic seal.
3. Envelopes with tender bids (quotations) received after the deadline for their submission are not opened and returned to the Offerors who submitted them.
Article 23. Term of validity, modification and withdrawal of tender bids (quotations)
1. Bids (quotations) remain valid for the period specified in the tender documentation. The calculation of this period begins from the date of opening envelopes with tender bids (quotations).
2. The Offeror is entitled to change or withdraw its tender bids (quotation) before the deadline for submission of the tender bids (quotation).
Article 24. Opening of envelopes with tender bids (quotations)
1. Envelopes with tender bids (quotations) are opened on time and in a certain place, which are specified in the tender documentation. The deadline for opening envelopes with tender bids (quotations) must coincide with the deadline for the final bid applications (quotations).
2. The name and address of each bidder whose envelope with the tender bids (quotation) were opened and price bids (price quotes), shapes, the date of execution of the contract delivery (contract), other significant conditions of supply proposed by the Offeror are reflected in the Minutes of opening of envelopes with tender bids (quotations).
Article 25. General terms of acceptance of the offers
1. During the selection, comparative analysis and evaluation of qualification (prequalification) and tender documents, the procedures and criteria provided for by the tender procedures established by this Law are used.
2. Changes in the substance of tenders in the direction of deterioration (quotations), including price changes, are not allowed. In this case, the tender organizer is entitled to negotiate with the Offeror to reduce the offered prices and (or) to clarify certain provisions of tender bids (quotations).
3. The tender bid (quotation) is recognized as the winner (the most economically advantageous and corresponding to the terms of delivery) if the offer made by it substantially meets the requirements of the tender and qualification documentation and is the most economically advantageous, including by a set of selection criteria (qualification, price, schedule of work and payments, quality, and others) has advantages over other offers participating in the tender.
4. Notification of the recognition of the tender bids (quotation) as the winner – the acceptance of the offer, is sent to the Offeror who submitted it within three working days from the date of making a decision on the selection. Other Offerors are notified about the rejection of their offers within the same time period.
5. When conducting the tender for the supply of the goods, performance of works, provision of services for objects of state significance, the supplier (contractor) is determined on the basis of the Minutes on the results of the tender, agreed with the Cabinet of Ministers of Turkmenistan, and the positive conclusion of the investment consultant or expert.
Article 26. Recognition of the tender as invalid. Cancellation of the tender
1. The tender is declared invalid if:
1) no bids (quotations) were submitted;
2) all tender bids (quotations) were rejected;
3) the minimum price of tender bids (quotations) exceeds the amount allocated for delivery;
4) the terms of tender procedures were violated, including information about offers and (or) their offers were disclosed.
2. If the delivery is no longer necessary for the state needs, including as a result of force majeure, the tender is subject to cancellation.
3. The Tender Commission is entitled to reasonably reject any tender bids (quotation).
4. The tender organizer sends a notification to all bidders within three business days from the date of the decision to declare the tender invalid or to cancel the tender, indicating the reasons for this.
In this case, the tender organizer is not obliged to prove the validity of these reasons.
5. The tender organizer does not bear any property or other liability to the Offerors in case of rejection of all bids (quotations).
6. If the tender is declared invalid in accordance with the first part of this article, the tender organizer may conduct the second tender.
Article 27. The minutes about the results of the tender
1. The Minutes on the results of the tender shall specify:
1) description of the delivery item;
2) the name and addresses of the bidders who submitted the bids (quotations);
3) requirements for Offerors when entering into a delivery contract);
4) price and other basic terms of each tender bid (quotation);
5) statement of evaluation criteria and grounds for selecting submitted tender bids (quotations);
6) in case of rejection of all tender bids (quotations) - the grounds for their rejection;
7) in the event that a supply (contract) agreement has not been concluded as a result of tender procedures, the statement of this with the statement of the relevant grounds;
8) if the range of potential suppliers (contractors) is restricted in accordance with article 13 of this Law - the grounds for such restriction;
9) when conducting the tender in the form of the tender with limited participation, request for quotations - the grounds for such a choice;
10) grounds for using prequalification procedures;
11) summary of requests for clarification of prequalification or tender documents and responses to them;
12) information about complaints filed and how to resolve them;
13) information on the involvement of investment consultants and experts;
14) the name of the Offeror declared as the winner;
15) other necessary information established by the tender organizer in accordance with this Law.
2. Minutes on the results of the tender signed by the members of the Tender Commission, and in the case provided for in the fifth part of article 25 of this Law,
also agreed with the Cabinet of Ministers of Turkmenistan, which is the basis for concluding a supply contract with the winner of the tender.
Article 271. The features of the tenders for the financing of deliveries at the expense of the State budget of Turkmenistan
If the Ministry of Finance and Economy of Turkmenistan is the organizer of the tender when financing supplies from the state budget of Turkmenistan (hereinafter referred to as the organizer of the tender):
1) the customer is also a participant in the tender procedures, except for the participants provided for in the first part of article 7 of this Law;
2) customer:
a) submit to the organizer of the tender the tender request for the conduct of the tender for deliveries that are envisaged in the future, and is responsible for its validity;
b) sets the terms of delivery for the tender and the amount of security for the performance of the delivery contract);
c) in the cases established by the first part of article 16 of this Law, conducts preliminary qualification of potential suppliers (contractors);
3) the organizer of the tender is not subject to sub-clauses "b" and "c" of paragraph 3, paragraph 7 of article 8 and part one of article 22 of this Law;
4) the tender organizer, in addition to the functions established by article 8 of this Law, also performs the following functions:
a) on the basis of the decision taken by the Tender Commission on the conclusion of a supply contract with the Offeror, the tender bid (quotation) of which is recognized as the most economically advantageous, and the approved Minutes on the results of the tender, prepare a conclusion on the implementation of deliveries, which is signed by the tender organizer and the customer;
b) keep a log of the registration, which records the registration (refusal to register) of the tender (quotations);
c) sets the exact date and time of the final deadline for bid applications (quotations), which must be at least fifteen working days from the date of publication of the notice about the tender or sending an invitation to participate in the tender.
In exceptional cases, on the basis of a reasonable request from the customer, the tender with limited participation may be held in a shorter time frame;
5) the Tender Commission is not subject to paragraph 4 of the second part of article 9 of this Law;
6) the Tender Commission, in addition to the functions established by article 9 of this Law, also makes a decision to conclude a supply contract with the Offeror, whose tender bids (quotation) is recognized as the most cost-effective.
CHAPTER VI. SUPPLY CONTRACT
Article 28. Supply contract (agreement)
1. The contract of delivery (agreement) between the organizer of the tender (customer) and the winner of the tender is concluded in writing in accordance with the legislation of Turkmenistan.
2. If the winner of the tender refuses to enter into a delivery contract or fails to provide security for the performance of the delivery contract, the Offeror from among other bidders whose offer and qualifications best meet the terms of delivery may be recognized as the winner, or a second tender may be held by the tender organizer.
3. Notification of the conclusion of the supply contract (agreement) specifying the name, address of the winner of the tender with which the contract was concluded, and the price of the contract within three working days from the date of its conclusion is sent for information to the bidders who participated in the tender.
4. It is not allowed to make changes and additions to the signed delivery contract that may change the content of the offer, which was the basis for selecting the supplier (contractor).
5. Relations arising from supply (contract) agreements are regulated by the legislation of Turkmenistan.
Article 29. Ensuring the execution of the delivery contract
1. The winner of the tender must provide security for the execution of the delivery contract in cases where:
1) the subject of the agreement is the implementation of an investment project;
2) pre-payment for delivery is provided.
2. Ensuring the execution of the delivery contract may include a Bank guarantee, surety, or Deposit in the national currency in accordance with the legislation of Turkmenistan.
The specific form of securing the performance of the delivery contract is determined by the tender documentation.
3. The amount of security for the performance of the delivery agreement (contract) may not exceed ten percent of the cost of the goods, works or services provided for delivery.
4. The term of validity of the security for the performance of the delivery contract must be valid until the full execution of the subject of the delivery contract, after which the security for the performance of the delivery contract must be returned to the supplier (contractor).
CHAPTER VII. RESPONSIBILITY OF PARTIES.
DISPUTE RESOLUTION
Article 30. Responsibility of parties
1. In case of disclosure by officials or representatives of bidders of information constituting a commercial or other legally protected secret, the losses caused in accordance with the legislation of Turkmenistan are subject to compensation by the guilty party to the person whose powers were violated.
Bidders who are guilty of violating other provisions of this Law are liable in accordance with the legislation of Turkmenistan.
2. The tender organizer (customer) and the supplier (contractor) bear the responsibility established by the delivery contract in accordance with the legislation of Turkmenistan.
Article 31. Dispute resolution
1. Disputes arising in the course of tender procedures are resolved in accordance with the procedure for consideration of complaints of bidders or in court.
2. The decision of the tender organizer made in connection with the appeal of the decision of the Tender Commission shall be attached to the Minutes on the results of the tender.
3. The subject of appeal may not be the requirements and conditions set by the tender organizer in the tender and qualification documentation.
CHAPTER VIII. FINAL PROVISIONS
Article 32. Financing of expenses related to participation in the tender
1. The costs associated with the preparation and submission of the tender bids (quotation) are borne by the Offeror.
2. The tender organizer shall not be obligated or reimburse the expenses incurred by the Offerors in connection with participation in the tender, regardless of its result.
3. The expenses of the tender organizer for organizing and conducting the tender are reimbursed from the funds of a special (tender) fee.
The tender organizer is not entitled to charge an additional fee for providing the tender documentation and its explanation.
4. The amount of the special (tender) fee is not subject to demand back, regardless of the result of the tender, except in cases of its cancellation.
5. Documents confirming the expenses incurred by the tender organizer and the contractor related to the tender procedures and deliveries are stored respectively with the tender organizer and the supplier (contractor) in accordance with the procedure established by the legislation of Turkmenistan.
Article 33. Notification form
Only those notifications, as well as notices, statements, minutess and conclusions that have been executed in writing are considered valid when conducting tender procedures and deliveries.
Article 34. Entry into force of this Law
This Law comes into force on July 1, 2015.
President Gurbanguly
of Turkmenistan Berdimuhamedov
Ashgabat
December 20, 2014
No. 158-V.