Public Procurement Code-Cape Verde

PUBLIC PROCUREMENT CODE CAPE VERDE Law nยบ 88/VIII/2015, 14 April

Fevereiro de 2017

PUBLIC PROCUREMENT CODE (PPC) Law 88/VIII/2015, of 14 April 2015 By mandate of the People, under Article 175(b) of the Constitution, the National Assembly hereby decrees as follows: Article 1 Approval This Public Procurement Code is hereby approved and published as a schedule to this statute of which it is an integral part.

Article 2 Grandfather clause The Public Procurement Code applies only to contract formation procedures initiated after its effective date.

Article 3 Transitional provisions 1. The limitations to the powers to authorize public procurement expenditure shall be established in a specific statute.

2. Until approval of the statute provided for in Article 3.1, the powers to authorize expenditure shall be as set forth in Article 42 of Decree-Law 1/2009, of 5 January 2009.

Article 4 Amendment to Legislative Decree 17/97, of 10 November 1997 Article 5 of Legislative Decree 17/97, of 10 November 1997 shall read as follows: “Execution of administrative contracts shall observe the provisions in Article 29 of the Public Procurement Code�.

Article 5 Repeal 1. The following are hereby repealed: a) Law 17/VII/2007, of 10 September 2007; b) Decree-Law 1/2009, of 5 January 2009; c) Chapters 7 through 11 of Decree-Law 54/2010, of 29 November 2010; d) Ordinance 45/94, of 11 July 1994;

1

2. All laws relating to the matters regulated by the Public Procurement Code and contrary to it are also repealed, save for any legislative acts establishing transitional provisions regarding public procurement.

Article 6 Cross references to repealed laws Cross references to repealed laws under Article 5 shall be deemed as references to the corresponding provisions in the Public Procurement Code.

Article 7 Entry into force This law shall come into force within 6 months as from the date of its publication.

Enacted on 27 February 2015.

The President of the National Assembly, BasĂ­lio Mosso Ramos.

Promulgated on 6 April 2015.

Let it be published.

The President of the Republic, JORGE CARLOS DE ALMEIDA FONSECA Signed on 7 April 2015.

The President of the National Assembly, BasĂ­lio Mosso Ramos

2

PUBLIC PROCUREMENT CODE TITLE I General principles and rules CHAPTER I Purpose and scope Article 1 Purpose 1. This Code establishes the public procurement regime.

2. The rules contained in this Code apply to the formation of the contracts set out in Article 3 that may be executed by the awarding entities described in Article 5.

Article 2 Definitions For the purposes of the provisions in this Code, the following shall have the following meanings: a) “Framework agreement” means a contract executed between one or more awarding entities and one or more economic operators, with the purpose of establishing the terms of the contracts to be executed during a certain period, notably as regards prices and/or quantities to be supplied; b) “Award” means an act whereby the winning bid is selected for future execution of the contract; c) “Procurement of personal property” means a contract whereby title to personal property is transferred to the awarding entity for consideration; d)

“Procurement of services” means a contract other than a public works contract or procurement of personal property whereby services are supplied for consideration;

e) “Public Procurement Regulatory Authority” means the regulatory authority of the National Public Procurement System, designated as ARAP; f)

“Applicant” means a natural or corporate person submitting an application at the qualification stage of pre-qualification procedures;

g) “Bidder” means a natural or corporate person submitting a bid or technical solution in any contract formation procedure; h) “Application” means a declaration whereby the applicant manifests to the awarding entity its unequivocal will to enter into a contract, submitted at the qualification stage of prequalification procedures; i) “Coercion” means directly or indirectly harming, causing damage to or threaten persons or assets to unduly influence their participation in a public procurement procedure;

3

j)

“Collusion” means collusion with other bidders to adversely influence a procurement procedure, notably by fixing prices or otherwise distorting sound competition; k) “Public works concession” means a contract that displays the same features of a public works contract and which consideration is the right to exploit the public works, whether or not for consideration; l) “Public utility concession” means a contract which purpose is the installation and temporary exploitation of a utility for the account and risk of the concessionaire, whether or not for consideration; m) “Corruption” means to offer, give, receive or request directly or indirectly to the awarding entities, the entities in charge of managing the procurement procedures, the evaluation committee or any entities involved, anything of value with the intention of unduly influencing third-party action; n) “General Directorate for Property and Public Procurement” means a department of the Ministry of Finance and Planning, in charge of property management and protection, implementation of public procurement policies and the control of the relevant procedures, designated as DGPCP; o) “Public works contract” means a contract executed for consideration, regardless of form, between the public works developer and a contractor on the terms specified in the Legal Framework of Public Works Contracts; p) “Awarding entity” means the public contracting party with an interest in the public procurement with a view to the future execution of the contract, whether or not it is the direct beneficiary of those contracts; q) “Fraud” means to forge or omit facts, where it wilfully or negligently induces or attempts to induce one party in error for the purpose of gaining a financial or other advantage or to avoid fulfilling an obligation; r)

“Interested party” means the potential party interested in submitting an application or bid in a public procurement procedure;

s) “Lease of personal property” means a contract whereby the lessor undertakes to grant to an awarding entity the temporary enjoyment of personal property for consideration; t)

“Obstruction” means to destroy, forge, tamper with or conceal evidence in any investigations or make misrepresentations to investigators to materially prevent an ARAP audit or by any other relevant entity, into allegations of corrupt, fraudulent, coercive or collusive practices; and/or threaten, persecute or intimidate any interested party to prevent it from disclosing its knowledge with regard to issues germane to the investigation or its conduct, or acts with the purpose of materially preventing the exercise of the rights to promote an audit; u) “Bid” means a declaration whereby the bidder manifests to the awarding entity its unequivocal will to enter into a contract and specifies the conditions for doing so; v) “Consultant service” means the performance of legal, technical, artistic, intellectual or scientific works, including without limitation the preparation of surveys, plans or projects of 4

a legal, technical, organizational, economic, financial, environmental or social nature; assistance and advice in connection with the establishment of policies, institutional reform, project preparation and management; implementation of IT projects; collection of data and/or the preparation of statistical surveys; or the carrying out of any investigation and development activities; w) “Procurement Management Unit” means the functional, not structural entity comprised of the entities tasked with conducting the procedure, designated as UGA; x) “Centralized Procurement Management Unit” means the functional, not structural entity comprised of the entities tasked with conducting the consortium procedure, designated as UGAC; Article 3 Contracts covered 1. Without prejudice to the provisions in the following Article, the framework provided for by this Code applies to the formation of the following contracts, where executed by an awarding entity set out in Article 5: a) Public works contract; b) Lease and procurement of personal property; c) Procurement of services; d) Consultant Services; e) Public works concession; and f)

Public utilities concession.

2. The framework in this Code further applies to the formation of the contracts identified in paragraph 1 irrespective of the contracting parties, where over 50% of their funding comes from any of the awarding entities set out in Article 5.

3. The formation of contracts with foreign funding is governed by this Code save in the instances provided for in Article 4.1.

4. The performance of any administrative acts in connection with any supplies under the contracts identified in paragraph 1 with the intention of circumventing application of the rules in this Code is hereby barred.

Article 4 Excluded contracts 1. The provisions in this Code do not apply to the following contracts where subject to specific procedural rules: a) Contracts executed between the State of Cabo Verde and third countries, entities of foreign governments or intergovernmental institutions under an international agreement, and which purpose is the implementation or joint exploitation of any given project; or

5

b) Contracts executed under the specific rules of any international organization of which Cabo Verde is a member.

2. The provisions in this Code also do not apply to contracts with the following purpose: a) Procurement of arbitration and mediation services; and b) Procurement of financial services in connection with the issue, purchase, sale or transfer of securities or other financial products, and services provided by the Banco de Cabo Verde (Central Bank).

3. Also excluded from the application of the provisions in this Code are: a) Contracts executed with a goods or services supplier who is also an awarding entity as defined in this Code, where the latter holds an exclusive right to that end; b) Contracts whose execution must be accompanied by special security measures or where the protection of material security interests of the Cabo -Verdean State so requires, by means of acknowledgment in a reasoned order by the relevant minister; or c) The framework agreements provided for in special laws.

Article 5 Awarding entities 1. For the purposes of this Code, the following are awarding entities: The State and the departments comprising its Direct Administration; b) Local Government; c) Public Institutes, irrespective of their autonomy degree, including Public Foundations and Regulatory Entities; d) State-Owned Companies of the central or local government business sector; e) Public Associations, Associations of Public Entities, or Associations of Public and Private Entities mainly funded by the entities listed in this Article or subject to their management control.

2. As regards the execution of public works and utilities concessions their concessionaires are also awarding entities.

3. Except for the entities specified in paragraph 1(a), all other awarding entities must enforce the rules on previous administrative actions and on approvals and authorizations as required under this Code, bringing them in line with their organizational structure and the management rules to which they may be subject.

6

CHAPTER II Principles relating to public procurement Article 6 Principle of public interest 1. Public procurement procedures shall aim at optimizing the satisfaction of public needs, within the scope of the powers of the awarding entities.

2. The principle of public interest requires optimal utility, proportionality and thoroughness of public expenses, as well as control, disallowing acquisitions which do not represent a return that is both proportional and appropriate for their value, or that fail to provide social, cultural or economic utility.

Article 7 Principle of good faith 1. Regarding the formation of contracts, public and private entities shall act according to the rules of good faith.

2. Public and private entities shall act according to identity, authenticity and truthfulness requirements in all communications.

Article 8 Principle of competition 1. The awarding entities shall ensure the promotion of effective competition in the award of public contracts.

2. In the formation and contract procedures that fall within the scope of this Code, the widest access to pre-contractual procedures shall be guaranteed to those interested in procurement.

Article 9 Principle of equality 1. In the procurement procedures, all interested parties shall have equal access and participation conditions, as long as they fulfill the requirements established in the law and the procedure documents.

2. There cannot be any discrimination, or acceptance of any interpretation of public procurement rules which is likely to cause discrimination, of any nature, between those interested in procurement or between bidders, as appropriate.

Article 10 Principle of proportionality 1. Whilst respecting the legal limits and considering the respective costs and benefits, public procurement requirements which are not adequate and proportional to the object of the envisaged contract shall not be included in public procurement p rocedures.

7

2. In the conduct of procedures, the steps and acts that are indispensible and adequate to the attainment of the envisaged goals shall be undertaken.

Article 11 Principle of transparency and publicity 1. The criterion for award, the essential procedural rules, as well as the essential conditions of the contract to be executed shall be defined ahead of the launch of the procedure and they shall be disclosed to all interested parties through the procedure documents.

2. The awarding entities shall guarantee an adequate level of publicity or awareness by all interested parties, in accordance with the type of procedure adopted under the terms of this Code, the corresponding procurement decision and the decisions made in the course of the procedure, including the award decision.

3. Tender programs, tender specifications, the terms of reference and all other procedure documents shall contain clear and precise provisions.

Article 12 Principle of impartiality 1. In the public procurement procedures, the awarding entity shall consider all relevant public and private interests in an adequate and impartial manner.

2. Tender programs, tender specifications, the terms of reference and other documents that form the basis of the procedure cannot contain any clause that unlawfully benefits or harms certain interested parties or a category of interested parties, nor can any interpretation or enforcement lead to such result.

3. The provisions of the general law on disqualification and suspicion of public body members and civil servants apply, as a way of ensuring impartiality, to the members and employees of the awarding entities, of the entities in charge of the procedure, of the evaluation committee or of any entities which participate in the procedure.

Article 13 Principle of economic and social development promotion In the contract formation procedure, all factors contributing to the promotion of national economic development, production development, procurement, industry and services of Cabo Verde, as well as compliance with national social policies, shall be considered.

Article 14 Principle of environmental protection In the contract formation procedure, the relevant public and private entities shall, when applicable, prioritize ecological acquisitions, works, solutions and actions, which are understood as the ones contributing most significantly to the reduction of negative environmental impacts.

8

Article 15 Principle of economy and efficiency 1. In contract formation procedures falling within the scope of this Code, the awarding entities shall guarantee the optimal use of available resources and an adequate economy of means, as well as the optimization of the satisfaction of collective needs.

2. In public procurement procedures, the awarding entities are further required to ensure respect for the principles of rationality, expenditure control and budgetary discipline.

Article 16 Principle of annual programming 1. Procurement procedures shall be programmed and planned through the drafting of annual acquisitions plans and other instruments and means established in public procurement legislation.

2. Whenever possible, and considering the nature of the supplies to be acquired, pooled procurement of assets, services or works shall be preferred, in accordance with Title III, Chapter I, Section II. Article 17 Principle of stability 1. Except in specific circumstances as established in this Code, the procedure documents shall remain unaltered whilst the relevant procedures are pending.

2. Except in specific circumstances established in this Code, namely whenever a contract is negotiated, the immutability of the respective documents shall be ensured throughout the entire procedure.

3. Whilst the contract formation procedures are pending, applicants and bidders, as well as applicant or bidder consortia, shall maintain the same identity and, in case of consortia, the same composition.

Article 18 Principle of favoring the procedure, bidders and bids In case of insurmountable doubts regarding the interpretation of the law or the provisions in the procedure documents, the awarding entity must favor the maintenance of the procedure, bidders and corresponding bids, whereas the decision not to award the contract and ensuing cancelation of the procedure shall only be made under the terms of this Code.

Article 19 Principle of liability 1. The awarding entities and their employees shall incur civil, financial and disciplinary liability for the commission of acts that are contrary to this Code.

2. The acts referred to in paragraph 1 must be communicated to ARAP, subject to further legal requirements concerning communications.

9

Article 20 Duty of ethical conduct 1. The awarding entities, the entities in charge of managing the procedure, the evaluation committee, as well as any other entities directly or indirectly involved in public procurement procedures, must act with integrity and honesty when dealing with any parties involved in the procedures.

2. The awarding entities and the entities in charge of managing the procedure shall conduct the procedure, and the evaluation committee shall evaluate the applications and bids, with absolute integrity, refraining at any moment from committing acts that jeopardize their impartiality and autonomy.

3. Any employees of the public entities involved in certain public procurement procedures shall mention, in writing, any personal interest resulting from special relations with any bidder or potential bidder involved, in which case they shall ask to be excused from participating in the procedure.

4. The situation referred to in the above paragraph must be included in the employee’s personnel file in the procedure documentation.

5. The duty of ethical conduct shall be enshrined in the Code of Conduct drafted by ARAP. Article 21 Duty of confidentiality 1. The awarding entities, the entities in charge of managing the procedure, the evaluation committee, any entities directly or indirectly involved in the public procurement procedure, as well as employees called upon to collaborate therein, are required not to disclose the elements of the procedure before their launch and ensure their confidentiality.

2. After the beginning of the procedure and until the award decision, no information concerning the steps of the procedure, namely relating to the evaluation of applications and bids, shall be disclosed unless expressly provided for in this Code.

CHAPTER III Regulation of public procurement Article 22 National Public Procurement System 1. The National Public Procurement System is comprised of all parties directly or indirectly involved in a given procedure, namely the awarding entities, the control entities, the entities in charge of managing the procedure, evaluation committees, economic operators and interested parties.

2. The System is regulated by the Public Procurement Regulatory Authority.

3. Public procurement procedures are regulated by ARAP, under the terms of this Code and the document approving ARAP’s by-laws.

10

4. The powers and authority of ARAP, as well as its procedures, are regulated by the statute approving ARAP’s by-laws.

CHAPTER IV Publicity Article 23 Publicity of the annual procurement plans The annual procurement plans and the annual grouped plans shall be published in the public procurement portal, in accordance with this Code.

Article 24 Publicity of the procedures 1. Public procurement procedures, as well as two-round public tender procedures and prequalification procedures, at national or international level, shall be published through an announcement posted in the public procurement website, substantially in the form of Schedules I, II and III of this Code.

2. The announcement for the procedures mentioned in paragraph 1, of an international nature, in addition to the publications referred to in the previous Article, shall be published on an international website.

3. Subject to the provisions of paragraph 1, the awarding entity may publish the procedure through any other appropriate means.

Article 25 Publicity of procedure documents and contracts The entities in charge of managing the procedure shall adequately publish the procedure documents, any amendments thereto, as well as awarded contracts’sheets, substantially in the form of schedule VI, on the public procurement website.

Article 26 Other publications Publications required by international agreements, as well as those considered appropriate to ensure an adequate level of publicity, shall be promoted by ARAP, the General Directorate for Property and Public Procurement and the awarding entities.

Article 27 Record of contracts 1. The awarding entities and/or the entities in charge of managing the procedure must keep a detailed record of their contracts.

11

2. For each procedure launched and/or contract concluded, the following information shall be included in the record of contracts, substantially in the form of Schedule VII. a) Identification of the supplies contemplated in the procedure; b) Procurement decision, expenditure approval decision and procedure choice decision; c) Financer and economic heading; d) Procedure documents; e) Clarifications relating to the procedure documents; f)

Rectifications of the procedure documents;

g) Identification of applicants and/or bidders; h) Applications, applicable case and bids; i)

Clarifications relating to applications, when applicable, and to bids;

j)

Minutes of the public session, when applicable, as well as other relevant procedure minutes;

k) Application evaluation reports, when applicable, and bid evaluation reports; l)

Negotiations documents, when applicable;

m) Award decision; n) Identification of the winning bidder; o) Contract value; p) Draft contract and contract; and q) Other relevant documents.

Article 28 Access to the procedure documents 1. The procedure documents may be consulted by any interested parties, from the date the procedure announcement is published or the date the invitation for bids is sent, in accordance with the adopted procedure, in the premises of the awarding entity, on the public procurement website or in any other place indicated in the procedural documents.

2. The procedure documents may be made available electronically.

12

TITLE II Types and choice of procedures CHAPTER I Types of procedures Article 29 Procedures 1. Subject to the regime specifically prescribed for the procurement of consultant services, the conclusion of contracts within the scope of this Code shall be preceded by one of the following procedures: a) Public tender; b) Two-round public tender; c) Pre-qualification procedure; d) Closed tender; or e) Direct award.

2. In a public tender, any interested party who fulfills the requirements established in the law and the procedure documents may present a bid.

3. In a two-round public tender, bidders shall present an initial technical offer in the first stage and, in the second stage, a final technical offer and a financial offer.

4. In pre-qualification procedures, only the applicants who qualify after the presentation of an application will be invited to present a bid.

5. Procedures may be national or international: a) They will be national when only natural or legal persons domiciled, based or with a principal establishment in Cabo Verde are allowed to submit an application and/or bid. b) They will be international when any interested party is allowed to submit an application and/or bid, as long as the conditions established in the law and the procedure documents are fulfilled.

6. In a closed tender, a number of economic operators will be invited to submit a bid, so as to guarantee the submission of at least three bids for assessment.

7. In a direct award, only one economic operator will be invited to submit a bid.

13

CHAPTER II Choice of procedure SECTION I Choice of procedure according to value Article 30 Criterion of contract value 1. Except in cases expressly provided for in this Code, the choice of the type of procedure is made according to the contract value.

2. The public tender procedure shall be adopted for the conclusion of the following contracts: a) Public works contracts with a value equal to or exceeding ten million Cabo Verde escudos (10.000.000$00); and b) Lease contracts and contracts for the procurement of personal property and services with a value equal to or exceeding five million Cabo Verde escudos (5.000.000$00).

3. The closed tender procedure shall be adopted for the conclusion of the following contracts: a) Public works contracts with a value equal to or exceeding three million and five hundred Cabo Verde escudos (3.500.000$00) and lower than ten million Cabo Verde escudos (10.000.000$00); and b) Lease contracts and contracts for the procurement of personal property and services with a value equal to or exceeding two million Cabo Verde escudos (2.000.000$00) and lower than five million Cabo Verde escudos (5.000.000$00).

4. The adoption of the direct award procedure only allows for the conclusion of public works contracts, lease contracts and contracts for the procurement of personal property and services with a value lower than the thresholds indicated in the previous paragraph.

5. For the formation of public works concession contracts or public utilities concession contracts, the procedure for two-round public tender or limited tender by pre-qualification shall be adopted.

6. The values referred to above may be updated through a Decree-Law. Article 31 Contract value 1. For the purpose of the previous Article, the contract value corresponds to the total economic value that the winning bidder can benefit from, exempt from any tax.

2. The economic value referred to in the previous paragraph encompasses the price to be paid by the awarding entity, throughout the term of the contract, including possible extensions, renewals or options, as well as any consideration or advantage, even if non-pecuniary, that the winning bidder can benefit from as a result of the conclusion of the contract.

14

Article 32 Division into lots 1. Supplies of the same kind that can be integrated in a single contract may be divided into several lots and separately awarded when the subject matter of the contract is of a divisible nature and it does not entail any damage to the whole that is to be acquired.

2. In cases where there is division into lots, through contracts concluded throughout the period of one year, the value to consider for the purpose of choosing the type of procedure applicable to each lot will be the one resulting from sum of the values of the lots.

3. No acquisition may be divided into lots with the purpose of avoiding the application of a certain type of procedure and the rules of this Code.

Article 33 Mixed Contracts 1. The execution of contracts with a purpose simultaneously comprising supplies typical of the various contracts listed in Article 3(a) through (c) is only allowed if such supplies are technically or functionally indivisible or, even though they are not, if it is demonstrated that their separation would cause severe inconvenience to the awarding entity.

2. In the award of contracts that have as purpose simultaneously the provision of supplies typical of various contracts, in accordance with the previous paragraph, the procedure applicable to the component corresponding to the main supply of the contract shall be adopted, or, if the latter cannot be determined, to the component of greater financial expression.

SECTION II Choice of procedure according to material criteria Article 34 Basis of choice The choice of procedure according to material criteria shall be preceded by a reasoned order, by the awarding entity.

Article 35 Public tender waiver 1. Regardless of the contract value, the awarding entity may authorize a public tender waiver: a) Where required for reasons pertaining to internal or external public safety; and b) In case of early termination of the contract concluded following public tender, two-round public tender or pre-qualification procedures, for reasons attributable to the co-contractor, when the execution of the contract is incomplete.

2. In the case provided for in subparagraph b) of the previous paragraph, the contract may be awarded by direct award to the bidder who presented the bid that ranked in second place, as long as 15

the price of such bid does not exceed the price of the winning bid by more than 10%, and the same guarantees are provided.

Article 36 Choice of two-round public tender Regardless of the contract value, a two-round public tender shall be adopted when: a) It is objectively impossible to define the most appropriate technical solution for the satisfaction of the awarding entity’s requirements; or b) The nature or the technical complexity of the supplies comprising the purpose of the contract to be concluded do not allow for the precise definition of the technical specifications most suited to the requirements of the awarding entity.

Article 37 Choice of pre-qualification procedure Regardless of the contract value, pre-qualification procedures shall be adopted whenever the works to be undertaken, the equipment and services to provide are especially complex, or require a particular technique, or the amount involved is very high.

Article 38 Choice of closed tender Regardless of the contract value, a closed tender may be adopted when there is a limited number of operators in the national market that are capable of offering the asset, service or works.

Article 39 Choice of direct award 1. Regardless of the contract value, a direct award can be adopted: a) When, for reasons of pressing and unforeseeable urgency, the legal deadlines required for public tender, two-round public tender, pre-qualification procedures or closed tender cannot be met, and as long as the circumstances invoked are not, in any case, attributable to the awarding entity; b) When, for technical or artistic reasons, or for reasons related to the protection of exclusive rights, the conclusion of the contract can only be awarded to a single economic operator; c) When, in a public tender, two-round public tender or pre-qualification procedures, no applicants or bidders applied, or all the bids were excluded, as long as the tender specifications are not substantially modified in relation to the original tender specifications; d) When, upon prior determination of the competent bodies, the procurement of personal property, the execution of works or provision of services are accepted as datio in solutum, in favor of the State of Cabo Verde; e) When the works, provision of services, acquisitions or lease of personal property are to be undertaken under a framework agreement concluded with a single entity; 16

f)

In the context of public works contracts and services agreements, considering the award of works or ancillary services which are not included in the contract or the initial project, but, following unforeseeable circumstances, become necessary for the execution of the works or the provision of services, as long as they cannot be technically or economically separated from the initial contract without serious inconvenience to the awarding entity;

g) In the context of contracts for the procurement of personal property, in the case of additional deliveries to be undertaken by the initial supplier, for the partial replacement of common use personal property or facilities, or to the expansion of the supply of existing movable property or facilities, if changing suppliers requires the awarding entity to acquire technically diverse material, which can generate disproportionate incompatibilities or technical difficulties in use and maintenance; h) When new services are a repetition of similar services contracted between the same entities, as long as: i)

These services are in accordance with a common basic project;

ii) The previous contract was awarded through public tender, two-round public tender or pre-qualification procedures; and iii) No more than three years have passed since the conclusion of the initial contract.

2. A direct award is only admissible, in the cases referred to in paragraph 1 (f), (g) and (h), if the total value of the contracts relating to works, services or additional property does not exceed 70% of the value of the initial contract.

3. In the cases referred to in subparagraph g) of paragraph 1, the possibility of resorting to direct award shall be mentioned in the announcement or in the tender program for public tender, two-round public tender or pre-qualification procedures.

CHAPTER III Procedure documents Article 40 Types of documents 1. The following are procedure documents: a) In a public tender – the tender program and tender specifications; b) In the two-round public tender – the tender program, tender specifications, the invitation to submit a final technical offer and the financial offer; c) In pre-qualification procedures – the tender program, the tender specifications and the invitation for bids; d) In the closed tender – the invitation for bids and the tender specifications; and e) In direct awards – the invitation for bids and the tender specifications.

2. In the procedure for the procurement of consultant services, the invitation and terms of reference which replace the tender program and the tender specifications.

17

3. In the closed tender or direct award procedures the entity in charge of managing the procedure may choose just to prepare the invitation where the nature of the product or service contemplated in the contract so allows.

Article 41 Preparation and approval of the documents 1. The documents of the procedures are prepared by the entity in charge of managing the procedure, pursuant to Article 66 with the cooperation that may be required from the awarding entity.

2. The documents of the procedure must contain all the information necessary to prepare and submit the application and/or the bid, in strict observance of the principles and applicable rules, so as to allow for full competition between all economic operators.

3. The procedure documents may be provided for public consultation by the awarding entities whenever required.

4. The procedure documents shall be approved by the awarding entity pertaining to the contract to be executed.

5. Procedure documents which contract value is equal to or greater than four million Escudos (4,000,000$00) must be submitted to the entity responsible for monitoring the procedures within the ministry in charge of finance for verification purposes.

Article 42 Standard procedure documents 1. Standard procedure documents must be approved by the government member in charge of finance or public works on proposal of the ARAP, prepared jointly with the relevant entities.

2. Should there be any standard procedure documents, their use is mandatory, and only special rules regarding the specific contract to be executed may be introduced.

Article 43 Invitation The invitation contains the conditions for the contract formation procedure and all elements required to prepare the bids.

Article 44 Tender program and tender specifications 1. The tender program establishes the terms for the contract formation procedure.

2. The tender specifications is the document containing the legal, financial and technical clauses to be included in the contract to be executed.

3. In the event of a two-round public tender, the tender specifications shall include the purpose of the contract to be awarded, the goals intended to be achieved by its execution, terms of the contract that must be observed in the technical offers to be submitted and the terms of submission.

18

Article 45 Technical specifications 1. The technical specifications define the characteristics required of a product, service or works, such as quality levels or performance, environmental features, safety, dimensions, including the requirements notably applicable to the quality assurance system, terminology, symbols, testing and test methods, packaging, marking or labelling which allow for an objective characterization of a material, product or good to be supplied, a service to be provided or works to be performed, so that it corresponds to its intended use as defined by the awarding entity.

2. Technical specifications may be complemented by a prototype of the material or element, which must be expressly identified in the procedure documents.

3. Technical specifications must describe in a clear, impartial and accurate manner the service and/or the goods to be supplied, the place of supply or delivery or installation of the goods, deadlines for the supply of the service or delivery of the goods, applicable minimum requirements, and any pertinent terms and conditions, including the definition of any tests, standards and methods to be used to assess compliance of the supplies provided for in the agreement.

4. Technical specifications shall be established by reference to: a) National technical specifications for design and use of products; and b) Other documents such as national rules transposing internationally accepted rules, or in their absence, other domestic rules or conditions of technical homologation.

5. Any drawings included in the technical specifications must be consistent with their text, and in the technical specifications the order of priority between drawings and texts must be defined in the event of any inconsistencies.

6. It is forbidden to establish technical specifications mentioning products of any given brand or source or to mention particular manufacturing processes resulting in the benefit or elimination of certain companies or products. It is also forbidden to use trademarks, patents or types of brand or to indicate one given source or production, save where it is impossible to describe the specifications, in which case those references are allowed accompanied by the expression “or equivalent�.

Article 46 Procedure documents relating to public works contracts and concessions 1. The project’s written and drawn elements, as well as the tender specifications relating to public works contracts and public works concession must reasonably define the characteristics of the works and the technical conditions for their performance, notably indicating the quality of the materials to be used, the work volume to be performed, the nature of the land, the general layout and construction details.

2. The tender specifications must include, in addition to any other elements deemed necessary: a) The project; b) The descriptive memory or note, and justifying calculations;

19

c) Maps with measurements broken down and referenced and relevant summary bills of quantities of works reasonably broken down by quantity and quality of works required for the performance of the works; and d) The work program where it is of a binding nature.

3. Drawings must also contain, in addition to any other elements deemed necessary, the location plan, elevation, cross sections and any material details for an accurate and detailed definition of the works and also, if applicable, the drilling map and geological profiles.

4. If the surveys set out in the preceding paragraph are not submitted, the awarding entity shall define the geological features of the land in the tender specifications.

5. Patented project elements shall be listed in the tender specifications.

Article 47 Submission of basic project by bidders 1. For works of technical complexity and a high degree of specialization where bidders must submit a basic project, the awarding entity must give a precise indication in the procedure documents of the objectives it seeks to achieve, specifying the aspects it deems binding.

2. Where the basic project must be prepared by the bidder, the project and tender specifications shall be replaced in the initial stage of the tender with the written and drawn elements required to accurately define the objectives and essential characteristics of the works being tendered, which comprise the terms of reference.

3. Once a basic project has been awarded, contractor must take account of it in preparing the construction project.

4. The basic project must be prepared taking account of rules applicable notably to the safety of the works and hygiene, health and safety at work.

5. If contractor is responsible for preparing the basic project, the tender specifications may require taking out insurance guaranteeing coverage of the risks and damages directly or indirectly arising from defective project design and works performance.

6. The developer may allocate premiums to bidders whose basic projects were admitted to the procedure, in which case it must determine the criteria to allocate the premiums in the tender program.

7. No premium may be allocated to any winning bidder.

Article 48 Project variants 1. The developer may establish in the tender program submission by bidders of variants in relation to all or part of the project notwithstanding the obligation to submit a basic offer for the performance of the works as established by the awarding entity.

2. The approved project variant replaces the relevant part of the project established by the awarding entity for all purposes.

20

3. In the event of unit price contracts, the variant must set forth the types and quantities of the works required to carry out the works and respective unit price list.

4. In the case of unit price contracts, the works corresponding to the project or variants shall be performed under the total price regime if the contractor so proposes and the developer accepts, and contractor must submit a total price payment schedule, which shall be calculated by applying unit prices to the forecasted quantities.

Article 49 Elements and method for calculating the basic project and variants Basic projects and variants prepared by contractor shall contain all documents required for their full consideration and justification of the calculation method used, and the awarding entity may request any clarifications and the provision of details, plans and additional explanatory drawings.

Article 50 Tender specifications for concession contracts Tender specifications for concession contracts formation procedures must be consolidated by an exploration code containing the rights and obligations of the parties and, where reasonable, the rules for exploiting the relevant works or public utility, considering the interests of their users.

Article 51 Terms of reference The terms of reference contain the conditions for the consultant services to be provided, and the elements required to prepare the bids, and shall among other things: a) Set out the rules of procedure, including the criteria to evaluate the bids and respective weighting, by decreasing order of importance and the evaluation grid; b) Describe the services contemplated in the consulting agreement to be executed; c) Define the consultants’ profile; d) Accurately define the objectives, deliverables and extension of the works to be performed; e) Indicate the period for provision of the services and any deadlines/partial milestones; f)

Indicate the consultants’ duties; and

g) Indicate the resources that shall be provided by the contracting party for the provision of the services.

Article 52 Clarifications regarding the procedure documents 1. The entity in charge of managing the procedure may of its own initiative or on request by the interested parties, provided the request is submitted by the end of the first third of the deadline set for submitting the bids, provide the clarifications required for the perfect understanding and interpretation of the procedure documents.

21

2. Clarifications shall be provided by the end of the second third of the deadline set for submitting the bids without identifying who requested them, and shall be notified to all interested parties who may then submit related clarification requests by the end of the second third of the deadline set.

3. Clarifications must also be disclosed by notice published on the public procurement website, as provided for in chapter IV title I. Article 53 Rectification of the procedure documents 1. Procedure documents shall be rectified by the awarding entity within the deadline set for submission of bids, with due reasoning.

2. Any rectification of the procedure documents shall be immediately notified to all interested parties and disseminated on the terms of Article 52.3.

3. Should the rectifications entail modification of material aspects of the procedure documents, the deadline to submit the bids shall be extended at least for the period elapsed since the beginning of the deadline to submit bids up to the date of notice of the rectifications.

TITLE III Contract formation CHAPTER I Prior administrative actions SECTION I Procurement decision and expenditure authorization Article 54 Beginning of the procedure Public procurement procedures begin with the sending of the procedure announcement for publication, or where not applicable, the invitation for bids.

Article 55 Powers to make the procurement decision 1. The procurement decision which establishes the need or convenience to enter into a contract with an economic operator rests with the awarding entity on proposal of the entity in charge of managing the procedure.

2. In the case of vehicle procurement for Central Government, the procurement decision must be preceded by an approval from the entity tasked with the State’s property management.

22

Article 56 Authorized expenditure 1. The authorized expenditure refers to the value of the contract to be executed ascertained pursuant to Articles 30 and 31, taking account of the limits of powers for expenditure authorization set forth by law and other applicable statutes.

2. If the amount of the authorized expenditure is less than the limit of powers, the real amount of the authorized expenditure may be set out in the tender specifications or adequate procedure document pending the tender specifications, as the contractual price limit.

3. Expenditure associated with price increases on the terms provided for by law or in the procedure documents shall be authorized by the body with the authority to authorize the global expenditure, including the contractual price increase.

Article 57 Budgetary compliance 1. The expenditure associated with the contract to be executed shall comply with: a) Forecasts and policies for application of resources itemized in the respective budgets of the awarding entity. b) The schedule of budgetary resources, considering their actual availability in accordance with the respective liquidity plan.

2. Where applicable, the awarding entity may only commit to payment of the amounts itemized in its budget or else in any law or resolution passed for that purpose, and provided that there is an available balance in the corresponding budget category, save for the exception regime contained in the budget framework law, in which case it must be included in the procedure announcement or the procedure documents in the event there is no announcement that the award is contingent on the approval of the corresponding budget category.

3. Where the provisions in the preceding paragraph apply to the awarding entities set out in Article 5.1(c), (d) and (e), the latter must authorize the expenditure pursuant to their respective by-laws.

4. If for any supervening reason the funds or financing secured to meet the expenses associated with the contract to be executed cease to be available, the contract formation procedure shall be immediately suspended and there shall be no award pursuant to Article 102.

Article 58 Powers to authorize expenditure within the scope of public utilities concession contracts 1. In the award of public utilities concession contracts, the awarding entity must, prior to the beginning of the contract formation procedure, obtain the approval of the Government member in charge of finance with respect to: a) The project’s technical and financial feasibility;

23

b) The structure of the project and conditions of the tender specifications and the remaining relevant procedure documents; and c) The guarantees to be provided by the winning bidder and/or the State.

2. The approval of the government member in charge of finance must also be requested for all procurement processes involving transfer of public funds, financial assistance or any type of payment of the awarding entity to the counterparty.

Article 59 Delegation of powers The powers provided for in this Code may be delegated on the terms of the law.

Article 60 Split expenses 1. For the purposes of this Code, the expenditure to be considered shall be the full price of the contract.

2. Splitting expenses with the intent to evade the regime provided for in this Code is prohibited.

SECTION II Procurement planning Article 61 Preparation and implementation of the annual procurement plan 1. The awarding entities must consolidate in an annual plan, indication of the personal property and services to be acquired or leased in the following year, and any public works contracts to be carried out, duly approved by the entity with authority to approve expenditure.

2. The implementation of the annual procurement plan shall be ensured by the entity in charge of managing the procedure pursuant to the provisions in this Code and the indications on the plan, notably: a) Type; b) Category; c) Asset, service or public works contract, duly specified; d) Estimated date and place of delivery; e) Measurement unit; f)

Type of procedure.

3. Annual procurement plans shall be published on the public procurement website following approval by the entity in charge of implementing public procurement policies and monitoring procedures of the ministry in charge of finance.

24

Article 62 Pooled procurement 1. Awarding entities shall pool in a single contract formation procedure, known as pooled procurement, the procurement of public works contracts, leases or acquisition of personal property or services, provided that they are of a same nature and have the same purpose.

2. Pooled procurement shall be governed by the provisions in this statute, namely with regard to the rules on choice of procedure and conducting the procedure, with the particularities provided for in this section.

3. Pooled procurement decisions must be made under Budget Directives on proposal of the government member in charge of finance.

4. The awarding entities set out in Article 5(c), (d) and (e) of this Code may use pooled procurement mutatis mutandis, in accordance with their by-laws.

Article 63 Preparation of pooled procurement 1. Awarding entities in central Government must submit to the entity in charge of managing the pooled procedure within the deadline set out in the Budget Directive of the Council of Ministers as provided for in Article 62.3, the personal property and services to be acquired or leased and any public works contracts foreseen for the following year, duly approved by the entity with authority to authorize expenditure and in accordance with Article 62.

2. The period of performance of contracts for the procurement of common use goods and services shall not exceed one year, notwithstanding the possibility to renew the contracts for an equal period up to a maximum three years.

3. The annual pooled plan shall detail for each category of goods to be pooled: a) Essential characteristics; b) Quantity; c) Intended place and date of delivery of the goods or supply of the services, as applicable; and d) Estimated procurement value.

4. Pooled procurement may also be organized under the Framework Agreement Regime provided for in this Code.

Article 64 Preparation of annual pooled procurement plans 1. The entity tasked with preparing the annual pooled plan and conducting the pooled procedure shall identify in addition to the provisions in Article 63.3, the following: a) The awarding entities; b) Total value of each pooled procurement; and 25

c) Estimated date of beginning of the procedure.

2. Annual pooled procurement plans shall be sent to the representatives of the awarding entities for information purposes and published on the public procurement website following approval by the government member in charge of finance.

Article 65 Conducting pooled procurement procedures For purposes of preparing the documents of the pooled procedure, the entity in charge of managing it shall collect from the awarding entities that will benefit from the pooled procurement, all elements required, notably their specific requirements with regard to the works, goods or services to be acquired as part of the pooled procurement, including the key clauses of the contract to be executed.

SECTION III Preparing and conducting the procedures Article 66 Conducting the procedures 1. The entities in charge of managing the procedures constituted with the awarding entities shall be tasked with conducting the public procurement procedures.

2. In Central Government, the entities charged with managing the procedure shall be known as Procurement Management Units – UGA, and the entity in charge of managing pooled procedures shall be known as Centralized Procurement Management Units – UGAC. 3. Central Government awarding entities must establish an UGA on the terms of applicable legislation and the other awarding entities may establish an UGA properly adapted to the provisions in their by-laws.

4. Without prejudice to any other powers expressly set forth in this statute and applicable law, the entities charged with conducting the procedure shall be tasked with: a) Choosing the procedure; b) Appointing the members of the evaluating committee; c) Preparing the procedure documents; and d) Providing the clarifications necessary for the proper understanding and interpretation of the procedure documents.

5. The entities charged with managing the procedure shall exercise their powers in accordance with the rules in this statute.

6. The entities in charge of managing the procedure may request the appointment of experts on the staff of public entities or of any other entities and may resort to other specialized advice sources to help them with the tasks set out in paragraph 4.

7. The entities in charge of managing the procedure shall develop all their work, from the administrative contract formation stage to the execution of the contracts in close liaison with the 26

awarding entities with whom they operate, and the latter must provide to the entities in charge of managing the procedure the elements required to prepare the procedure documents and to launch the procedure.

8. All matters referring to the entities in charge of managing the procedure shall be regulated by a specific statute.

Article 67 Composition and procedures of the evaluation committee 1. The evaluation committee is comprised of an odd number of members, no less than 3 members, of which one shall be chairman, two acting members and two alternate members.

2. The members of the evaluation committee shall be appointed for each procedure by the entity in charge of managing the procedure.

3. The procedure’s evaluation committee shall begin its duties on the business day following the day of sending of the announcement for publication or the invitation.

4. The evaluation committee may only transact business when the number of members present at the meeting corresponds to the number of acting members.

5. The evaluation committee’s resolutions, which must always be reasoned, shall be passed by a majority of votes and no abstention is allowed.

6. In any resolution with a dissenting vote from any evaluation committee’s member, the reasons for dissent shall be recorded in the relevant minutes.

7. The members of the evaluation committee may be assisted by experts appointed by the entity in charge of managing the procedure or, in its absence, by the awarding entity without any voting rights for the issue of opinions on specialty matters.

Article 68 Powers of the evaluation committee Without prejudice to any other powers expressly provided for in this Code, the evaluation committee of the procedure shall be tasked with: a) Presiding over the public session; b) Deciding on the claims submitted in the public session; c) Reviewing and evaluating the bids and preparing the relevant reports; and d) Reviewing and evaluating the bids and preparing the relevant reports.

27

CHAPTER II Rules for participating in the procedures SECTION I General provisions Article 69 Consortia 1. The submission of applications or bids by an applicant or bidder consortium is permitted, which following award and prior to the execution of the contract shall take on the legal form required in the procedure documents.

2. The members of any applicant or bidder consortium may not submit any application or bid in the same procedure or be a member of another applicant or bidder consortium.

3. The members of the consortium shall be jointly and severally liable towards the awarding entity for maintaining the application and/or bid.

4. The entities comprising the consortium shall appoint a common representative with broad and sufficient powers to represent the members of the consortium during contract formation and performance and shall have a single domicile.

Article 70 Disqualification of applicants and bidders 1. The following are barred from submitting an application or bid or being a member of an applicant or bidder consortium: a) Any Entity who is insolvent or bankrupt, winding up, suspending its business activities, subject to court administration or in any other similar situation, or with any proceedings for any of the above pending against it; b) Any Entity who has been or, in the case of a legal entity, any acting members of its management or administration bodies who have been, convicted of a crime or offense relating to their professional conduct by court ruling transited in res judicata; c) Any Entity barred from participating in procurement procedures pursuant to the law; d) Any Entity with outstanding contributions to social security in Cabo Verde or their home country or the country of their principal place of business; e) Any Entity with outstanding taxes to the State of Cabo Verde or their home country or to the country of their principal place of business; or f)

Any entity who has or, in the case of a legal entity, if their acting members of its management or administration bodies have, been convicted of a crime of participation in a criminal organization, corruption, fraud or money laundering or, if the procedure contemplates execution of a works contract or public works concession agreement, for the commission of any offenses which under the legal framework for access to and performance of construction activities would bar their access to that activity, by court ruling transited in res judicata.

28

2. Any natural or legal persons or the latter’s representatives or employees having in any way participated or participating in future, either directly or indirectly, in the preparation of the procedure may not participate in the procedure.

3. Any natural or corporate persons, or any representative or employee of the corporate person, who have participated or will participate, directly or indirectly, in any contract covered by the consultant services contemplated in the procedure are also barred from participating in consultant services procurement procedures.

4. For purposes of the provisions in paragraph 1(d) and (e), the situation shall be deemed regular provided that the entity managing the social security system or the relevant tax office, respectively, so declares, even in any circumstances where there is an agreement between that entity and the applicant or bidder for settlement in instalments of outstanding payments, or provided that a claim, appeal or any other form of challenge legally admitted under the law of Cabo Verde or the home country of the bidder or the country of its principal place of business is filed with suspensive effect.

5. In the case of the preceding paragraph, a subsequent notice from the entity managing the social security system or the tax office, respectively, to the entity in charge of managing the procedure that any instalment is outstanding or that the situation of the applicant or bidder is irregular shall be sufficient to determine its immediate removal from the procedure.

6. The Public Prosecutor shall communicate to the entity legally empowered to inspect public works and to the ARAP any rulings transited in res judicata that end the criminal procedures referred to in the final part of paragraph 1(f), with regard to individuals or companies whose activity includes the performance of public works or their respective managers or directors.

7. Any entities to which the applicants or bidders that are public works contractors have submitted documents must, in the event of suspected forgery, notify the fact to the entity legally empowered to inspect public works and to the ARAP, attaching all evidence in their possession, including a copy of their criminal complaint to the Public Prosecutor.

Article 71 Confirmation of no disqualification 1. Parties interested in participating in the procedure shall submit along with their application or bid, a statement substantially in the form of schedule IV to this statute to the effect that they are not in any of the situations set out in Article 70.

2. The winning bidder must further submit within ten days following notice of the award decision, a new declaration substantially in the form of schedule IV and supporting documents confirming that it is not in any of the situations set out in Article 70.1(b), (d), (e) and (f).

3. When confirmed at any time that in any given procedure a bidder or an applicant were disqualified under Article 70.1(c), the fact shall be submitted to the Public Prosecutor for prosecution purposes, if any, notwithstanding the application of the administrative offenses regime provided for in this Code.

4. Without prejudice to the provisions in the preceding paragraph, expiry of the award may be declared in the event that the contract already executed has been awarded to it and/or the contract 29

may be terminated, without the disqualified winning bidder being entitled to any compensation or damages as set forth in this Code, in the administrative offenses regime.

Article 72 List of ineligible entities 1. The ARAP shall maintain a list of entities barred from tendering under Article 70 and that are known to be in any of the situations referred to in Article 70.1, which shall be disclosed on ARAP's site and the public procurement website.

2. The list set out in the preceding paragraph must indicate the reasons for inclusion of each entity and the ineligibility period, if applicable, and any other information deemed relevant. The list must be updated on a monthly basis.

Article 73 Professional qualifications and authorizations 1. Where legally required, applicants and bidders must hold specific professional qualifications or authorizations or be members of certain professional organizations.

2. In procedures for the execution of a works contract or public utilities concession, app licants or bidders must hold a registration certificate, classification certificate or a civil construction works contractor permit, issued by the relevant entity, containing the authorizations required in the announcement and the tender program and the class corresponding to the value of the bid and provided they satisfy the conditions set forth in the following Articles.

3. The registration certificate, the civil construction contractor permit, and the certificate of civil construction contractor classification constitute a presumption of commercial standing, financial, economic and technical capacity only as regards the elements covered by the documents required for the grant of the permit or the certificate.

4. Save if otherwise provided for in the procedure documents, documents supporting the qualifications or the professional authorizations need only be submitted by the winning bidder following notice of award decision pursuant to Article 100.2(a).

SECTION II Technical capacity and financial capacity Article 74 Assessment of technical and financial capacity 1. In pre-qualification procedures and in any other procedures where the awarding entity intends to assess the technical and/or financial capacity of the applicants or bidders, the awarding entity shall set forth in the procedure documents the minimum technical and/or financial capacity requirements that they must meet.

2. The technical and/or financial requirements and the evidence to submit to demonstrate their satisfaction must be clearly identified in the announcement, if any, as well as in the procedure documents and must pertain to, among other things: 30

a) Experience in the performance of supplies similar to those contemplated in the contract to be executed; b) Human resources, technical equipment or other resources available to the applicant or bidder; c) The applicant’s or bidder’s financial situation; or d) Environmental management measures implemented by the applicant.

Article 75 Technical capacity 1. The technical capacity of applicants or bidders may be assessed by notably submitting the following documents: a) List of the main goods or services supplied within the last three years, relevant amounts, dates and recipients, accompanied by a certificate of declaration of the recipients of the goods or services or by simple declaration of the applicant or bidder where the recipients are private entities; b) Description of the technical equipment used by the applicant or bidder or, in the case of procedures for the execution of works contracts, description of the equipment and special tool to be used in the works, whether owned, leased or with a right to use it under any other legitimate title; c) Indication of the technicians or the technical bodies whether or not integrated in the applicant and, particularly, those who are charged with quality control, and the education and professional qualifications of those technicians, particularly those assigned to the supply of the assets or services or the performance of the works; d) Indication of annual average effective staff of the tenderer within the last three years; e) Description of the methods adopted by the tenderer to guarantee the quality and the survey and research methods it uses; f)

Certificate issued by an institute or social service tasked with controlling quality, with recognized authority and that attests to the compliance of the goods duly identified by reference to certain specifications or rules; and

g) Certificate issued by independent bodies to certify tenderer’s compliance with certain quality assurance rules.

2. In procedures for the execution of public works contracts, the technical capacity of the applicants or bidders may also be assessed by means of submission of the following documents, and paragraph (a) above shall not apply: a) List of the works performed over the last five years accompanied by good performance certificates relating to major works; the certificates must indicate the amount, date and place of performance of the works and whether they were performed in accordance with trade standards and regularly completed;

31

b) List of the works of the same nature as the works being tendered, performed over the last three years, accompanied by good performance certificates as provided for in the preceding paragraph.

3. If the supplies contemplated in the contract to be executed are complex or if, exceptionally, they are intended for a specific purpose, the awarding entity may be required to control them or, on its behalf, a competent official body of the country of establishment of the tenderer, provided that the prior agreement of that body is secured.

4. The control set out in the preceding paragraph must address production capacity or the applicant's or bidder’s technical capacity and, if necessary, it must also address the survey and research methods available to the applicant or bidder and the quality control measures it implemented.

5. Other evidence may be required in addition to that identified in the preceding paragraphs, provided that the evidence especially concerns the purpose of the agreement.

6. Where the applicant or bidder justifiably is not in a condition to submit the documents required, it may prove its capacity by means of other documents on the terms and conditions allowed by the procedure documents, which reliability shall be assessed by the evaluation committee.

Article 76 Financial capacity 1. To assess the financial capacity of the applicants or bidders, submission of one or more of the following documents may be notably required: a) Adequate bank statements or proof of subscription of a professional risk insurance or third party general liability insurance; b) In the case of corporate persons, accounting statements for the last three financial years ended or the financial years ended as from incorporation, in the event they were incorporated less than three years prior; c) In the case of natural persons, income tax returns submitted over the last three years or since the beginning of their professional activity, should it have occurred less than three years prior; and d) Indication with regard to the last three years of the applicant's or bidder's global turnover and, if applicable, the turnover for the activities contemplated in the contract to be executed for the last three financial years ended or the financial years ended since the beginning of the relevant activity if less than three years.

2. In procedures for the execution of public works contracts, public works or public utilities concession contracts, a document issued by the Banco de Cabo Verde or any relevant entity may also be required in the month when the procedure was launched or the previous month, stating the liabilities of the company in the financial system and, where applicable, an equivalent document issued by the Central Bank or relevant entity of the company’s home country or place of principal establishment.

3. The provisions in Articles 75.5 and 75.6 shall apply to proof of financial capacity.

32

Article 77 Assessment of the capacity of applicant consortia Save where otherwise provided for in the tender program, in the event of submission of application or bid by a consortium, the technical and/or financial capacity requirements may be satisfied by just one member of the consortium or by all members of the consortium jointly.

Article 78 Use of third-party capacity The applicant or bidder may resort to the technical capacity of other entities regardless of the legal nature of their relationship, and in that case it must demonstrate to the awarding entity that it will really have the necessary resources available to it by submitting a term of commitment subscribed by those entities.

CHAPTER III Applications SECTION I General provisions Article 79 Documents accompanying the application 1. Applications must be accompanied by the following documents: a) Statement subscribed by the applicant containing, for natural persons, name, taxpayer ID number, marital status and domicile and, for corporate persons, name, registered offices, relevant affiliate companies for the performance of the contract, if applicable, names of members of management board, board of directors or officers of the company, and identification of other persons with powers to bind the bidder in the procedure; b) Statement of the applicant accepting the terms and conditions contained in the tender specifications, substantially in the form of the template included in schedule V to this Code; and c) Documents demonstrating technical and/or financial capacity of the applicant as required in the tender program, in accordance with the provisions in Articles 75 and 76.

2. The statements set out in paragraph 1(a) and (b) must be signed by the applicant or a representative duly empowered to bind it.

3. Any other documents accompanying the applications must be signed by the issuing entities.

Article 80 Submission of application by consortia In addition to the elements referred in Article 79, applications submitted by consortia shall also be accompanied by the following elements:

33

a) Identification of the consortium members and respective domiciles or registered offices and in the case of corporate persons, identification of their legal representatives; b) Documents evidencing powers of representation of the representatives of each consortium member and/or the consortium’s common representative and the latter’s identification; c) Reference to the fact that each consortium member shall be jointly and severally liable with the other consortium members towards the awarding entity for maintaining the application and compliance with the obligations arising therefrom; and d) Any other elements expressly set forth in the procedure documents.

SECTION II Joint pre-qualification system Article 81 Establishment of the joint pre-qualification system 1. The purpose of the joint pre-qualification system is the assessment of the technical and financial capacities of the interested parties and selection of the entities qualified for future submission of bids in closed tenders.

2. The establishment of the joint pre-qualification system, the rules applicable to pre-qualification, the prequalification criteria and the rules for selection of pre-qualified entities to submit bids pursuant to Article 92 shall be published as provided for in Title I, Chapter IV. 3. Where the duration of the joint pre-qualification system is greater than three years, publication as provided for in paragraph 2 shall be made on an annual basis.

4. Parties interested in the joint pre-qualification system shall submit the pre-qualification application on the terms and conditions provided for in the announcement.

Article 82 Rules for joint pre-qualification 1. The rules and criteria for the joint pre-qualification system shall be adequate to the types and characteristics of the contracts to be executed, considering the rules and principles underpinning this Code.

2. In the joint pre-qualification system the technical and/or financial capacity requirements set out in the announcement must be satisfied, which shall be governed by chapter II, section II of this title.

3. The joint pre-qualification system may comprise several qualification stages and shall be based on objective and non-discriminatory rules and criteria, notably as regards satisfaction of the interested parties’ technical capacity or financial capacity requirements, applied on equal terms.

4. Breach of the provisions in this Article shall entail revocation and/or expiry of the prequalification decision and consequent removal from the list of pre-selected interested parties.

34

Article 83 Pre-qualification decision 1. Any interested entity may submit a pre-qualification application at any time during the term of the joint pre-qualification system.

2. The body of the awarding entity with authority to that end shall issue an opinion on the prequalification application within fifteen days as from the date of application, provided that it contains all elements required for the pre-qualification decision.

3. The pre-qualification decision must be founded on the rules and criteria applicable and notified to the interested parties.

4. The body mentioned in paragraph 2 may only revoke the pre-qualification decision based on the supervening breach of applicable rules or criteria.

5. The entity in charge of managing the procedure, which launched the pre-qualification shall put together a list of the pre-selected interested parties.

6. Pre-qualified interested parties shall be selected by the entity in charge of managing the procedure referred to in the preceding paragraph in accordance with the rules set forth in the prequalification announcement to submit a bid in a closed tender.

CHAPTER IV Bid Article 84 Documents accompanying and attaching to the bid 1. Bids must be accompanied by the following documents: a) Statement of the bidder provided for in Article 79.1(a), except in the case of prequalification procedures, where the statement was submitted in the application stage; b) Statement provided for in Article 79.1(b); and c) Documents provided for in Article 79.1(c), except in the case of pre-qualification procedures, where the documents were submitted in the application stage; 2. The following documents shall attach to the bids: a) The documents required in the tender program which, according to the purpose of the contract to be executed and the content of the tender specifications, contain the terms and conditions for the bidder to enter into the contract; b) Proof of provision of a bid security, where required; and, c) Document containing the justification for putting forward an abnormally low price pursuant to the provisions in Article 88.

3. In procedures for the execution of a public works contract or concession, the bid must also attach the following elements:

35

a) Term of commitment subscribed by the bidder and each subcontractor, in the case of any subcontracts, containing: i. Identification of the authorizations required to act as a construction contractor ii. The technical specifications for the works contemplated in the subcontract. b) Work program, including a work plan, workforce plan and equipment plan; c) Explanatory and descriptive memory of how the works will be performed, specifying the key technical aspects; and d) Construction project, where it has been submitted to the competition.

4. Any other documents that the bidder submits and deems essential shall also comprise the bid.

5. The statements set out in Article 79, paragraphs (a) and (b) and Article 84.3(a) shall be signed by the bidder or any representative duly empowered to bind it, and the statement set forth in paragraph 3(a) must also be signed by the subcontractor or its legal representative, in case there is a subcontract.

6. Any other documents accompanying or attaching to the bids must be signed by the issuing entities.

Article 85 Variant bids 1. Variant bids present conditions distinct from the base bid submitted by the same bidder.

2. The announcement of the procedure or the tender program must set out whether or not there can be any variant bids and if so, regarding which aspects of the performance of the contract to be executed. In the absence of such indication it shall be deemed that no variant bids may be submitted.

3. If there is submission of variants, the minimum requirements applicable shall be set out in the tender specifications and also the rules for submitting variant bids.

4. In procedures for the execution of a public works contract or concession, base projects and variants prepared by the bidder shall contain all documents required for their full assessment and justification of the calculation method.

Article 86 Submission of bids by consortia In addition to the elements referred in Article 85, bids submitted by consortia shall also be accompanied by the following elements: a) Identification of the consortium members and respective domiciles or registered offices and, regarding corporate persons, identification of their legal representatives, except in the case of prequalification procedures, where it was provided in the application stage; b) Documents evidencing powers of representation of the representatives of each consortium member and/or the consortium’s common representative and the latter’s identification, except in the case of pre-qualification procedures, where it was provided in the application stage; c) Description of the supplies and obligations impending on each consortium member; 36

d) Reference to the fact that each consortium member shall be jointly and severally liable with the other consortium members towards the awarding entity for maintaining the bid open and complying with the obligations arising therefrom; and e) Any other elements expressly set forth in the procedure documents.

Article 87 Price 1. The total bid price must be set out in numbers and in full and is exclusive of any taxes.

2. In the event of any inconsistency between the prices indicated in numbers and in full, the latter shall prevail.

3. Save where otherwise provided for in the procedure documents, the proposed price shall include all costs regarding performance of the contract, including any incidental or related costs, such as fees, insurance and transportation.

4. The procedure documents may set a base price which shall correspond to the highest price that the awarding entity is willing to pay for the performance of all supplies contemplated in the contract.

5. Where the procedure documents do not set a base price, the proposed price shall not exceed the following amounts: a) The cap on the contract to be executed as permitted by the type of procedure adopted; b) The cap of the body with powers to authorize the expense relating to the contract contemplated in the procedure; or c) The actual value of the authorized expenditure where lower than the cap for the relevant body to authorize the expense.

Article 88 Abnormally low price 1. In those cases where a base price was set, the total price of the proposal shall be deemed to be abnormally low whenever: a) It is lower than the base price by 40% or more in works contracts; b) It is lower than the base price by 50% or more in any other contracts.

2. Where no base price was set, the awarding entity following the opinion of the evaluation committee, shall submit its grounds for considering that the proposed price is abnormally low.

3. A proposal may be excluded based on the abnormally low nature of the proposed price save where the bidder fully justifies it following the proper clarification request.

37

Article 89 Confidentiality of the application and bid documents 1. During the first third of the deadline to submit applications and bids, the interested party may request from the entity in charge of managing the procedure the confidentiality, to the extent strictly necessary, of the documents comprising the bid as they may contain technical, industry, commercial, military or other legally relevant secrets.

2. The entity in charge of managing the procedure shall decide on the request for confidentiality and serve the decision on all parties interested in the procedure by the end of the second third of the deadline to submit bids.

3. If the entity in charge of managing the procedure should not expressly authorize the confidentiality of the bid within the deadline set out in the preceding paragraph, the bid documents shall be presumed non-confidential.

4. The confidentiality of the bid may be lifted at any time during the procedure if the reasons for the confidentiality no longer subsist.

Article 90 Bid validity period 1. Notwithstanding that a longer period may be established in the procedure documents for more complex procedures, bidders must maintain their bids open for a period of sixty days as from the deadline for their submission.

2. The bid validity period shall be deemed extended for equal periods for any bidders who do not require otherwise as established in the procedure documents.

CHAPTER V Submission of applications and bids Article 91 Language of the applications and bids 1. The documents accompanying or attaching to the application and the bid must be drafted in Portuguese; if drafted in a foreign language, they must be accompanied by a legalized translation or a statement of the applicant or bidder accepting prevalence of the translation over the original documents.

2. On an exceptional basis, certain application or bid documents may be permitted to be drafted in a foreign language provided that the tender program specifies which documents may be drafted in a foreign language and which foreign languages are acceptable.

38

Article 92 Submission of applications and bids 1. Applications and bids may be submitted in person against delivery of a receipt by the services of the entity in charge of managing the procedure, indicating the day and time of receipt, or by registered mail with recorded delivery.

2. In the instances contemplated in paragraph 1, for the pre-qualification procedure: a) Applications and accompanying documents must be enclosed in an opaque, closed and sealed envelope, with the mention “Application”, and indicating the name of the bidder, the name of the procedure and the name of the awarding entity; b) If the entity in charge of managing the procedure should have approved the request for confidentiality of the application documents, the documents containing confidential information shall be enclosed in an opaque, closed and sealed envelope, with the mention “Application – Confidential Documents”, which must remain enclosed in the envelope referred to in subparagraph (a) above; and c) Article 92.3(b) through (e) shall apply mutatis mutandis to bids.

3. In the instances provided for in paragraph 1, for all other types of procedure: a) The documents accompanying the bid set out in Article 84.1 shall be enclosed in another opaque, closed and sealed document, marked with the word “Documents”; b) Bids and attaching documents set out in Article 84.2 through 84.4 must be enclosed in an opaque, closed and sealed envelope, with the mention “Bid”, and indicating the name of the bidder, the name of the procedure and the name of the awarding entity; c) If the entity in charge of managing the procedure should have approved the request for confidentiality of the bid documents, the documents containing confidential information shall be enclosed in an opaque, closed and sealed envelope, with the mention “Bid – Confidential Documents”; d) In the event of submission of one or more variant bids, the latter and any accompanying elements shall be enclosed in an opaque, closed and sealed envelope, marked with the words “Variant Bid”, or “Variant Bid 1”, “Variant Bid 2” and so forth, according to the number of variants submitted; and e) The envelopes referred to in the preceding paragraphs shall be enclosed in another envelope, the “Outer Envelope” with the mention of the name of the bidder, the name of the procedure and the name of the awarding entity.

4. The tender program or invitation to tender, as applicable, may establish that the application and bid documents, where comprised of more than one page, must be consolidated into an indivisible issue or issues with all pages numbered in a way that prevents separation or adding of pages, and the first page of each issue shall set out its total page number.

39

Article 93 Receipt of the applications and bids 1. Following receipt of the applications and bids by the entity in charge of managing the procedure, the latter shall keep them locked until such time as they are opened at the public session by the procedure's evaluation committee.

2. The entity in charge of managing the procedure shall keep a record of the bids submitted and the day and time of their receipt.

Article 94 Deadlines to submit applications and bids 1. The deadline for submitting applications and bids must be clearly indicated and established in the announcement and the procedure documents taking account of the complexity of the contract and the time necessary to prepare the applications and bids, without prejudice to the minimum deadlines established in this statute for each type of procedure.

2. Applications and bids shall be deemed submitted for purposes of assessing their timeliness: a) On the date of their receipt by the services of the entity in charge of managing the procedure where submitted in person; or b) On the date of signature of the acknowledgement of receipt where submitted by registered mail with recorded delivery.

CHAPTER VI Evaluation and rejection of bids and award Article 95 Bid evaluation process 1. The bids shall be reviewed and evaluated in accordance with the awarding criterion defined in the procedure documents and respective weighting.

2. In the bid evaluation process, the evaluation committee may be advised and assisted by thirdparty entities unrelated to the awarding entity and/or the evaluation committee, where the latter do not have the staff with the required knowledge and experience.

Article 96 Oversights in the bids 1. The evaluation committee may cause the correction of manifest oversights detected in the review of the bids, notably arithmetic oversights that do not affect the validity of the bids.

2. The evaluation committee shall record this action in the evaluation report.

40

Article 97 Clarifications regarding the bids 1. The evaluation committee may request bidders to provide clarifications regarding the bids for purposes of review and evaluation.

2. The clarifications referred to in the preceding paragraph shall be an integral part of the bid provided they do not run counter the procedure documents, do not alter or fill in any gaps in the aspects being evaluated or seek to correct omissions that determine the rejection of the bid pursuant to this Code or the procedure documents.

Article 98 Grounds for rejection of bids 1. The following bids shall be rejected: a) Bids delivered after expiry of the deadline set for their submission; b) Bids not attaching all the documents required under this statute or the procedure documents; c) Bids whose documents are not drafted in Portuguese or are not accompanied by legalized translation and declaration of the bidder that they accept prevalence of the translation over the original; d) Bids whose documents were forged or contain misrepresentations; e) Bids not attaching proof of provision of bid security, where required; f)

Bids submitted by bidders in collusion within the procedure;

g) Bids whose total proposed price exceeds the base price, if set; h) Bids presenting an abnormally low price without attaching any justification or with justifications deemed unclear; i)

Bids breaching mandatory conditions of the Tender Specifications or any applicable legal or regulatory provisions;

j)

Bids omitting some aspects that must be evaluated according to the award criteria; Variants, where their submission is not allowed under the procedure documents, or submitted as variants in excess of the number of variant bids allowed under the procedure documents; or

l)

Submitted as variants where, although permitted by the procedure documents, no base bid was submitted, or if the base bid presents any grounds for rejection.

2. The procedure documents may also establish any other grounds for rejection of bids.

41

Article 99 Award criteria 1. Evaluation of the bids and award shall be made in accordance with one of the following criteria: a) The lowest price; or b) The most economically advantageous bid.

2. The lowest price criterion may only be adopted if the procedure documents contain all specifications of the object of the supply to be acquired, and only the price is open to competition.

3. The award based on the most economically advantageous bid criterion must be based on objective factors such as price, schedule for the supplies contemplated in the contract to be executed, the technical value of the bid, aftersales service and technical assistance, guarantees offered or environmental features.

4. In the most economically advantageous bid factors may also be foreseen that grant greater weight to bids submitting goods produced, extracted or farmed in Cabo Verde, or relating to services provided or supplies made by entities of Cabo-Verdean nationality or with registered offices in CaboVerdean territory.

Article 100 Award decision 1. The award decision shall be taken by the awarding entity and served on the winning bidder and all other bidders by the entity in charge of managing the procedure, together with the final bid evaluation report.

2. Along with the notice of the award decision, the winning bidder is also notified to submit within ten days: a) The statement and the documents evidencing that there is no disqualification event as provided for in Article 70; b) The documents evidencing that the winning bidder holds the qualifications or authorizations required to perform the supplies under the contract, foreseen in the procedure documents, notably, a permit in the event of public works contracts; c) Proof of provision performance security; or d) Any other documents required under the procedure documents.

3. In case the bid attached documents to evidence the technical and/or financial capacity or the pre-qualification procedure was adopted, the winning bidder must also submit within the same deadline as provided for in the preceding paragraph, a sworn statement confirming that it maintains the technical and/or financial capacity conditions previously evidenced in the procedure.

4. In the event of reasonable doubt regarding the continued satisfaction of the winning bidder's technical and/or financial capacity requirements for the good performance of the contract, the winning

42

bidder shall also be notified to resubmit the documents requested within the scope of the procedure within the same deadline provided for in the preceding paragraph to demonstrate those requirements.

Article 101 Expiry of the award 1. The award decision shall expire where: a) The winning bidder fails to submit the documents set out in the foregoing paragraph within the deadline established to that effect; b) The winning bidder is a consortium and its members fail to incorporate prior to the date indicated to sign the contract in the legal form required in the procedure documents, without presenting a justification deemed reasonable by the entity in charge of managing the procedure.

2. In the event of expiry of the award, contract may be awarded to the bidder ranking second, provided that the price of its bid does not exceed the price of the bid ranking first by more than 10%.

Article 102 Procedure cancellation events 1. After the beginning of the procedure, the awarding entity has an obligation to make an award decision.

2. Without prejudice to the provisions in the previous paragraph, there will be no award and the procedure shall be cancelled where: a) No bid was submitted; b) All bids were rejected; c) Due to unforeseen circumstances, it is necessary to modify material aspects of the procedure documents after the deadline for submission of the bids; d) Supervening circumstances occur that result in the alteration of the assumptions on which the procurement decision was based including if due to supervening circumstances the awarding entity loses interest in the agreement or the funds or financing secured or expected to be secured to meet the expenditure associated with the contract to be executed are no longer available. e) In case of a direct award procedure, only one bid is submitted and where no contract base price has been indicated, the price advanced is deemed by the awarding entity to be manifestly disproportionate; or f)

In the event set out in Article 57.4.

3. In addition to the reasons set out in the foregoing paragraph, in procedures for the execution of a public works contract or public works concession, there shall be no award where: a) Due to supervening circumstances, the awarding entity decides to postpone the performance of the works for at least one year; or 43

b) In the case of projects or variants prepared by the bidders, the projects and variants submitted do not suit the awarding entity.

4. The decision to cancel the procedure and corresponding reasons shall be notified to the bidders.

5. In the case of paragraph 2(c), a new procedure shall be launched within six months as from the date of service of notice of the non-award decision.

6. In case of execution of a public works contract or public works concession, the non-award decision based on the mentioned subparagraphs of paragraph 3 above shall be communicated to the entity legally empowered to inspect public works.

CHAPTER VII Security Article 103 Provision bid security 1. In the contract formation procedures identified below, bidders may be required to provide a bid security along with the bid: a) Works contracts or public works or utilities concession contracts with a value greater than five million escudos (5,000,000$00); b) Lease agreements for the procurement of personal property and services with a value greater than two million escudos (2,000,000$00).

2. The security must be provided in any of the manners set out in Article 107 and the relevant supporting document attached to the bid.

3. The bidders shall be entitled to the release of the security: a) Once the bid validity period has elapsed, if the bidder has expressly opposed extension of that period; b) In the event its bid is rejected; or c) Following notice of an award decision in favor of another bidder.

4. Irrespective of whether or not the interested party so requests, the awarding entity shall cause the security to be released within ten days as from the occurrence of any of the events provided for in the preceding paragraph.

5. The security provided by the winning bidder may only be released upon provision of a performance security.

44

Article 104 Provision of performance security 1. Winning bidder shall be required to provide a security to guarantee the execution of the agreement, and the proper and timely discharge of legal and contractual obligation undertaken with the execution of the contract.

2. For contracts contemplating advance payments, a security must be provided in an amount equal to the advance payments made.

3. The awarding entity may immediately call part or the full security provided, without prior demand to the winning bidder and with or without a court ruling: a) In the event of failure to appear on the day, at the time and place designated for the execution of the contract without justification; or b) In the event of breach of the contract.

Article 105 Instances of performance security exemption 1. No security shall be required for the purposes foreseen in the following instances: a) Contracts with a value lower than two million escudos (2,000,000$00); b) Contracts for the provision of consultant services provided there are no advance payments; or c) Contracts for the procurement of personal property or provision of services where the supply by the winning bidder is made within ten days from execution of the agreement.

2. Any winning bidder producing an insurance agreement fit for the performance of the works based on the total of price of the contract and the respective project, if applicable, shall be exempted from the provision of security.

3. In works contracts with a value of less than two million and five hundred thousand escudos (2,500,000$00) the security may be replaced by a 10% withholding over the payments to be made.

Article 106 Security amount 1. The amount of the performance security shall correspond to 5% of the contract price.

2. If the winning bidder submitted a price deemed abnormally low pursuant to this statute, it shall be required to provide a security corresponding to 10% of the contract price.

3. In public works contracts and public works and public utilities concessions, the awarding entity may on an exceptional basis and provided that it is duly justified and published, increase the lower threshold of the security, provided that it does not exceed 30% of the total contract price, on previous authorization of the supervising authority, if any.

45

Article 107 Admissible security formats 1. The winning bidder shall prove provision of the security to the entity in charge of managing the procedure within the deadline set forth in Article 100.2.

2. Securities required under this statute may be provided by deposit in cash or securities issued or guaranteed by the State, by bank guarantee or insurance bond.

3. Deposit in cash or securities shall be made in a credit institution to the benefit of the entity designated in the procedure documents and the purpose for which it is intended must be specified.

4. If the winning bidder provides the performance security by bank guarantee it must deliver a document whereby a legally authorized banking institution guarantees up to the security amount immediate payment of any amounts demanded by the awarding entity on simple claim of breach of the obligations covered by the security.

5. In the event of an insurance bond, winning bidder must submit the policy whereby an entity legally authorized to offer the insurance takes on, up to security amount, the obligation to immediately pay any amounts demanded by the awarding entity on simple claim of breach of the obligations covered by the insurance.

6. The conditions of the bank guarantee or insurance bond shall in no circumstance result in a decrease of the awarding entity’s guarantees as ensured by other permitted ways to provide the performance security, even where, in the case of an insurance bond, no premium was paid.

7. The winning bidder shall be responsible for any expenses associated with the provision and maintenance of the security.

Article 108 Failure to provide security Failure to provide a performance security on time for a reason ascribable to the winning bidder shall entail expiry of the award pursuant to Article 101.

Article 109 Release of performance security 1. The awarding entity shall cause the release of the security: a) Following full discharge of the contractual obligations of the winning bidder; or b) If, for any reason ascribable to it, the awarding entity fails to execute the agreement on the established date.

2. In the case of public works contracts, all contractual obligations shall be deemed fully discharged upon final acceptance of the works as stipulated in the public works contracts legal framework.

3. In the instances provided for in paragraph 2, the security shall be released within thirty days.

4. The provisions in the preceding paragraph shall not impair the possibility, under other applicable legal statutes, of partially releasing the security, stepwise, in accordance with contractual obligations’ compliance milestones.

46

5. In the instance provided for in paragraph 1(b), the winning bidder may demand reimbursement of all expenses and charges demonstrably incurred in the provision of the security, without prejudice to the right to fair compensation.

6. In the event of delay in the release of the security for any reason ascribable to the awarding entity, the winning bidder may demand that the awarding entity pay late payment interest on the amount of the security calculated based on the time elapsed between the day following expiry of the deadline provided for in the preceding paragraph.

CHAPTER VIII Contract execution Article 110 Contract form 1. Save as provided for in the next paragraph, the contract must be made in writing.

2. A written contract shall not be required for tenders with a price or estimated value not exceeding three hundred thousand escudos (300,000$00) pursuant to Article 154.

Article 111 Contract content 1. When made in writing, the contract shall include the technical, legal and financial clauses of the tender specifications and also the following elements, otherwise it shall be null and void: a) Identification of the parties and their representatives, and their respective capacity; b) Reference to the award decision and the act of approval of the draft contract; c) Reference to the security provided by the winning bidder; d) Description of the contract’s purpose; e) The price, or if it is impossible to indicate it, the elements necessary to determine it; and f)

Performance deadlines for the contract’s main supplies.

2. Works contracts and public works concession contracts must also contain the following, otherwise they will be null and void: a) The number of contractor permit, and that of any subcontractors engaged in the contract; b) Specification of the works comprising the contract’s purpose, with reference to the project, if any; c) Identification of the unit price contractual list; d) Deadline for performance of the works with estimated dates of beginning and end; e) Binding conditions of the work program; f)

Format, deadlines and other terms of payment and price adjustment.

47

3. If the specification required under subparagraph (e) is not included in the works contract or public works concession contract, the binding conditions of the descriptive memory and explanatory note of the work program shall be deemed included in those contracts for all purposes.

4. The following are an integral part of the contract regardless of whether or not set to writing: a) Clarifications and rectifications to the procedure documents; b) The tender specifications or invitation in cases of simplified procedures; c) The awarded bid; and d) Clarifications on the awarded bid provided by the winning bidder.

5. In the event of any inconsistencies between the documents referred to in the preceding paragraph, prevalence shall be determined by their order of priority.

6. In the event of any conflicts between the documents referred to in paragraph 4 and the contract, the former prevail.

Article 112 Approval of the draft contract 1. Where the contract must be made in writing, the draft shall be approved by the body with authority to authorize the expenditure, either following or at the same time as the award decision.

2. In the case of pooled procurement, the draft contract shall be approved by the body with powers to authorize the expenditure and by the relevant awarding entities.

3. In the event that a security must be provided pursuant to this Code, the draft contract may only be approved after the winning bidder has provided proof of provision of security.

Article 113 Notice of draft to the winning bidder 1. Following approval of the draft pursuant to Article 112, the draft agreement shall be served on the winning bidder.

2. The draft shall be deemed accepted by the winning bidder in the event of express acceptance or if it raises no objection within five days as from the notice.

Article 114 Objections to the draft contract 1. The winning bidder may only object to the content of the draft contract where it imposes obligations that are not contained in the bid or the documents on which the procedure was based.

2. The objections shall be raised with the entity that approved the draft contract, which shall decide on the objections within ten days. Silence shall be deemed as approval of the objections.

3. The deadline set forth in the preceding paragraph shall be extended to thirty days where the relevant entity is the Council of Ministers.

48

4. The previous paragraph shall apply mutatis mutandis to the awarding entities set out in Article 5 (c), (d) and (e).

Article 115 Execution of the contract 1. The contract must be executed within thirty days as from the date of acceptance of the draft contract or the decision on the objections raised against such draft.

2. The awarding entity shall notify the winning bidder no less than five days in advance of the date, time and place for the execution of the relevant contract.

3. If the awarding entity should fail to execute the agreement within the established deadline, the winning bidder may release itself from the bid, in which case the performance security provided shall be released within ten days, without prejudice to the winning bidder being compensated for the expenses and charges demonstrably incurred with the submission of the bid and provision of the security.

4. The award shall expire if the winning bidder fails to attend the execution of the contract without justification pursuant to Article 101.

5. The contract may only be executed after ten business days have elapsed as from the date of service of the award decision notice and provided that the winning bidder has submitted the qualification documents and proof of provision of the performance security.

Article 116 Representation at the execution of the contract 1. Representation of the awarding entities at the execution of the contract shall rest with the body empowered for the procurement decision.

2. If the body empowered for the procurement decision is a collegiate body, the chairman shall be tasked with representation.

3. In any other cases, representation rests with the relevant entity pursuant to the institution’s bylaws.

4. In pooled procurement contracts, representation and execution rests with each awarding entity involved.

5. The powers to execute the agreement may be delegated on the general terms of the law.

49

TITLE IV Conduct of procedure CHAPTER I Public tender SECTION I General provisions Article 117 Tender notice The tender announcement shall be published in accordance with the terms of Title I, chapter IV. Article 118 Tender program 1. The tender program defines the terms ruling the tender, including but not limited to: a) The identification of the tender; b) The identification of the awarding entity and of the entity authorizing the expenditure; c) The name, address, e-mail address and fax number of the entity in charge of managing the procedure; d) The grounds for exclusion from participating in the procedure, in accordance with article 70; e) The manner and place of submitting bids; f)

The deadline for the submission of bids;

g) The documentation that must accompany and attach to the bid; h) The documentation accompanying and attaching to the bid may be drafted in a foreign language, in accordance with article 91; i)

Statement of the legal form that the winning bidder consortium shall adopt;

j)

The currency or currencies in which the price shall be determined, as well as, if applicable, the procedure for the conversion of prices expressed in different currencies into a single currency, with the purpose of comparing bids and the currency in which the contract price will be paid.

k) Statement of specific professions and/or specific professional qualifications or authorizations required for the execution of the supplies of the contract to be concluded, in accordance with article 73; l)

The possibility of submitting bid variants and, if affirmative, the maximum number of admitted variants and the conditions for their acceptance;

m) The awarding criterion, which, in the case of the most economically advantageous bid, shall clarify the factors used to evaluate and weight the bids and the evaluation grid;

50

n) The possibility of awarding bids in lots, in which case the rules that apply to each lot shall be stated; o) The period during which the bidders are obliged to keep their bids open, if longer than the legal term; p) The value and manner of providing a bid security, when required; q) The manner of providing a performance security, when required; and r) The date, time and place of the public opening session.

2. The rules of the tender program shall prevail over any contrary provisions in the announcement.

Article 119 Deadline for submitting bids 1. The deadline for submitting bids is the one stated in the announcement and in the tender program, and it starts running from the date of publication of the announcement, respecting the following minimum deadlines: a) In case of national public tender: i. Thirty-five days, if the purpose of the tender is the execution of a public works contract, a public works concession or public utilities concession; or ii) Twenty days, if the purpose of the tender is the conclusion of a contract for the procurement or lease of personal property or services; and b) In case of international public tender: i. Forty-five days, if the purpose of the tender is the execution of a public works contract, a public works concession or public utilities concession; ii) Thirty days, if the purpose of the tender is the conclusion of a contract for the procurement or lease of personal property or services.

2. In case of exceptional urgency, duly substantiated by the awarding entity, the deadline for submitting bids may be reduced to ten days, regardless of the type and value of the contract.

3. In case more than one announcement is published, the deadline for submitting bids only starts running after the publication of the last announcement.

SECTION II Public session Article 120 Performance of the public session 1. The bids submitted shall be opened, in a public session, at the place, date and time established in the announcement and in the tender program, and the session shall take place immediately after the expiry of the deadline for submitting bids.

2. The public session comprises the reading and acknowledgement of the documents that have been delivered and/or are missing, in accordance with the announcement and the procedure documentation.

51

Article 121 Public session 1. The public session is continuous, with the number of meetings necessary for compliance with all its formalities.

2. The Public Prosecutor or his representative shall attend the public session of the procedure for the conclusion of a public works contract with an estimated value or base price that is equal to or exceeding ten million escudos (10,000,000$00).

3. The evaluation committee may assemble in a private session, interrupting, to that end, the public session of the tender.

4. During the public session, the evaluation committee shall verify the timeliness of the bids and whether the formalities for submitting bids established in article 92 were complied with.

5. Any interested party may attend the public session, however, only the bidders and their duly accredited representatives may intervene.

6. In the moments established by the evaluation committee, during the public session, bidders and their representatives may: a) Request the review of the documents submitted by other bidders; or b) Challenge any conclusions drawn by the evaluation committee during the public session.

Article 122 Opening of bids 1. The evaluation committee initiates the public session by identifying the procedure, the dates of publication of the announcements, the clarifications and rectifications of the procedure documents.

2. After that, the evaluation committee indicates any bids that were submitted after the deadline.

3. Following that, the “Outer Envelope” envelopes will be opened and immediately after the “General Documents” envelopes, all in the order in which they were received.

4. Following the opening of the “General Documents” envelopes, the list of bidders will be read and afterwards the evaluation committee will ask the bidders' representatives to produce their credentials.

5. The list of bidders must be enclosed in the minutes, forming an integral part of the latter.

6. The "Bids" envelopes that are submitted within the deadline shall be opened in the order in which they were received.

7. The documents enclosed in each of the envelopes will be initialed by the members of the evaluation committee.

8. In case the bid documents are submitted in the manner stated in Article 92.4, only the first written page of each issue shall be initialed.

9. With the exception of documents classified under Article 89, documents and bids may be freely reviewed by the bidders or their accredited representatives, and they will be made available for

52

examination after the public session, at the premises of the entity in charge of managing the procedure or of the awarding entity.

10. All the contributions of the evaluation committee shall be made aloud, namely the names of applicants or bidders and the proposed prices.

11. The minutes of the public session shall be drawn up and signed by the members of the evaluation committee and the bidders’ representatives.

Article 123 Submission of claims 1. The interested parties may submit a claim, in the public session, on the following grounds: a) Their non-inclusion in the bidders list; b) The violation of the provisions of this statute, of other applicable legislation or of the tender program.

2. In the case referred to in paragraph 1(a), the interested party shall submit, simultaneously with the claim, evidence of timely bid submission.

3. Following the claim under paragraph 1(a), the evaluation committee shall endeavor to locate the envelope, without interrupting the session.

4. If the envelope is not found, the claim is considered inadmissible and the public session continues, without prejudice to the lodgment of a claim with the awarding entity and to the recovery of possible damages.

5. If the envelope is found, it shall be opened in accordance with articles 121 and 122.

6. Claims shall be decided during the public session, and, for that purpose, the evaluation committee may convene in a private session, which outcome will immediately be publicized.

7. The decisions regarding claims shall always be reasoned and recorded in the minutes with express reference to reasoning and voting.

Article 124 Adjournment of the public session As soon as the formalities referred to in the previous articles are fulfilled, the evaluation committee shall read the public session minutes and communicate the decision regarding any submitted claims, and then adjourn the public session.

Article 125 Certificates of the minutes Bidders or any interested parties may request a certificate of the public session minutes, which shall be issued within five days.

53

SECTION III Admission and qualification of bidders and evaluation of bids Article 126 Admission of bidders 1. Bidders who did not comply with any of the rules of Article 92, relating to the submission of bids, may be conditionally admitted, as long as the non-compliance is not deemed material.

2. Bidders who are conditionally admitted shall, within a period of two or four days, meet the requirements that led to the conditional admission, for the procurement of goods, services and contracts respectively, otherwise they might be excluded from the procedure.

Article 127 Assessment of bidders’ technical and/or financial capacity 1. Before the evaluation of bids, when the tender program provides for the qualification of bidders, the evaluation committee shall verify the technical or financial capacity requirements provided for in the tender program, in accordance with the provisions of Title III, Chapter II, Section II. 2. In case one or more requirements of technical or financial capacity are not fulfilled, the evaluation committee shall propose, in the preliminary report of the evaluation of bids, the exclusion of those bidders.

3. The bids submitted by bidders who were excluded under the previous paragraph will not be evaluated.

Article 128 Review of the bids After verifying if there is any cause for bid exclusion under article 98, the evaluation committee shall review the bids that will not be excluded.

Article 129 Preliminary evaluation report 1. After completing the review and evaluation of bids, the evaluation committee shall prepare a reasoned report with the bid evaluation, in which it proposes their ranking in accordance with the award criterion and the factors and possible sub-factors of the bid assessment and relevant weighting as provided for in the tender program.

2. In the preliminary report, the evaluation committee proposes the admission, conditional admission and exclusion of bids, in accordance with article 98.

3. The preliminary report is notified to the bidders, and a deadline of five to ten days shall be established for them to comment on all the proposals of the evaluation committee in a prior hearing, if they wish to do so.

Article 130 Final evaluation report 54

1. Once the comments made by bidders in the prior hearing are analyzed, the evaluation committee shall prepare a reasoned final evaluation report, keeping or changing the conclusions of the preliminary report, and bids can still be excluded if at this stage the existence of a cause of exclusion is verified.

2. In situations where the final part of the previous paragraph applies, as well as when the final report entails the modification of the bid ranking, there shall be a new prior hearing in accordance with paragraph 3 of the previous article and, subsequently, the provisions of this article will apply.

3. The evaluation committee shall forward the final evaluation report to the entity tasked with conducting the procedure, who shall submit it to the awarding entity, for the purpose of award.

CHAPTER II Two-round public tender Article 131 Applicable regime The two-round public tender shall follow the provisions applicable to the public tender, mutatis mutandis, and with the specificities provided for in this chapter.

Article 132 Stages of the procedure The two-round public tender necessarily includes the following stages: a) Submission and review of the initial technical offers, which shall be accompanied by the documents referred to in article 84, paragraph 1; b) Preparation and notification of the initial offers assessment report; c) Call for submission of final technical offers and financial offers; and d) Submission and evaluation of final technical offers and financial offers.

Article 133 Tender program Besides the elements referred to in article 118, the tender program must determine: a) The deadline and how to submit the initial technical offer; b) The deadline and how to submit the final technical offer and the financial offer; and c) The documents that must be enclosed in the initial technical offer, the final technical offer and the financial offer.

Article 134 Award criterion The award criterion in the two-stage public tender shall is always be the most economically advantageous bid.

55

Article 135 Initial technical offer assessment report 1. After reviewing the initial technical offers, the evaluation committee shall prepare a report where it proposes, with reasoning, the admission or exclusion of the initial offers, and reviews and formulates recommendations regarding the initial technical offers that have been admitted, for the purpose of the subsequent submission of final technical offers.

2. The following initial technical offers must be excluded: a) Those vitiated by any exclusion event under article 98, subparagraphs a) to g) and j) to l); or b) Those that prove manifestly inappropriate for the requirements or goals established in the tender specifications.

3. The report is notified to the bidders, and a deadline of no less than five days shall be established for them to comment in a prior hearing, if they wish to do so.

4. Articles 129 and 130 apply mutatis mutandis to the initial technical offer assessement report.

Article 136 Changes to the tender specifications The entity in charge of managing the procedure may appropriately change the tender specifications and/or the tender program on the basis of the contents of the initial technical offers submitted.

Article 137 Call for submission of final technical offers and financial offers 1. Together with the initial technical offers final assessment report, the entity in charge of managing the procedure shall simultaneously call for the submission of final technical offers and financial offers by the bidders whose initial technical proposals were admitted.

2. The call for submission must determine the deadline and how to submit the offers, the documents that must be included in the final technical offer and the financial offer, and it must be accompanied by the corrections to the tender specifications and/or the tender program or the indication of how they can be obtained.

Article 138 Evaluation of final technical offers and financial offers 1. Evaluation of final technical offers and financial offers shall be made as provided for in the public tender, mutatis mutandis.

2. Offers that do not comply with the recommendations shall be excluded and may not be evaluated.

56

CAHAPTER III Pre-qualification procedures SECTION I Submission of applications and qualification Article 139 Applicable regime Pre-qualification procedures observe, mutatis mutandis, the provisions that govern the public tender with the particularities provided for in this chapter.

Article 140 Tender program In addition to the references set out in Article 118, the tender program shall indicate: a) The documents necessary for applicants’ qualification; b) How to submit the applications; c) Deadline for submission of applications; and d) Technical and/or financial capacity requirements for qualification purposes.

Article 141 Deadline to submit applications The deadline for submission of applications shall be freely set in the tender program and take account of the nature, characteristics, volume and complexity of the documents comprising the applications, in any case not less than fifteen days.

Article 142 Public opening session Following expiry of the deadline to submit applications, the same will be opened at a public session and the provisions in Title IV, Chapter I, Section II shall apply mutatis mutandis.

Article 143 Review of applications and qualification 1. After the public session is adjourned, the evaluation committee at a private session shall review and qualify the applications in accordance with the requirements and conditions established in the tender program.

2. The evaluation committee shall propose exclusion of applications: a) Vitiated by any of the exclusion events set out in Article 98(a) through (d), (f) and (i); b) Including any reference giving indication of the bid to be submitted; or c) That do not allow for proving applicant's compliance with the technical and/or financial requirements.

57

Article 144 Preliminary application assessment report 1. After completing review of the applications, the evaluation committee shall prepare a reasoned report of the review proposing acceptance or exclusion of the applicants in accordance with Article 143.

2. The preliminary report shall be served on the applicants setting a deadline of not less than five days for them to make known their position at the prior hearing.

Article 145 Final application assessment report 1. Following the review of the applicants’ positions at the prior hearing, the evaluation committee shall draft the final reasoned application assessment report, either upholding or changing the findings of the preliminary report, and the exclusion of any application may still be put forward if an exclusion event is found to occur at this stage.

2. In the case of the last part of the preceding paragraph, a new prior hearing shall be held according to Article 144.2 and the provisions in this Article shall then apply.

3. The evaluation committee shall deliver the final report to the awarding entity for its approval through the entity in charge of managing the relevant procedure.

SECTION II Submission of bids Article 146 Invitation to bid 1. Along with the qualification decision the entity in charge of managing the procedure shall deliver to all qualified applicants an invitation to bid.

2. The invitation to bid shall notably contain: a) Identification of the tender; b) Reference to the tender announcement; c) Documents that must comprise the bids; d) Deadline to submit the bids; e) Manner for submitting bids; f)

Date, time and venue of the public opening session;

g) The award criterion explaining, if the economic most advantageous bid is used, the factors to evaluate the bids and respective weight and evaluation grid; h) The period during which bidders must keep their bids open if other than as provided for in Article 90; i)

How to provide the bid security, where required, and relevant amount; and 58

j) How to provide the performance security, where required, and relevant amount.

Article 147 Deadline to submit bids 1. The deadline to submit bids shall be the deadline set out in the invitation and the tender program and starts to run as from the date of delivery of the invitation to bid, where the following minimum deadlines shall be observed: a) for national public tenders: i. Thirty days if the tender is for the execution of a public works contract, public works concession or public utilities concession; or ii. Fifteen days if the tender is for the execution of personal property purchase and sale or lease agreements or services agreements; b) For international public tenders: i. Forty days if the tender is for the execution of a public works contract, public works concession or public utilities concession; or ii. Twenty-five days if the tender is for the execution of personal property purchase and sale or lease agreements or services agreements.

2. In case of exceptional urgency duly justified by the awarding entity the deadline to submit bids may be brought down to ten days regardless of the type and price of the contract.

Article 148 Subsequent procedures The provisions in Title IV, Chapter I, Section II of this Code shall apply to the public opening session and any subsequent procedures.

CHAPTER IV Closed tender Article 149 Applicable regime The provisions governing public tender shall apply mutatis mutandis to closed tenders, in all matters not contradicted by the provisions in the following Articles.

Article 150 Invitation to bid 1. The invitation to bid and the tender specifications shall be sent at the same time to the invitees by registered mail with recorded delivery or email.

2. The invitation must contain the following elements: a) The awarding entity and the entity that authorized the expenditure; b) The reason for choosing the closed tender procedure where choice is based on a material criterion; 59

c) Deadline to submit the bids; d) Manner for submitting bids; e) Documents that must comprise the bids; f)

Date, time and venue of the public opening session;

g) The award criterion explaining, if the economic most advantageous bid is used, the factors to evaluate the bids and respective weight by decreasing order of importance and evaluation grid; h) The period during which bidders must keep their bids open if other than as provided for in Article 90; and i)

Manner of provision of a bid security, where required.

Article 151 Choice of invitees

1. The awarding entity chooses the invitees for the submission of bids in accordance with the knowledge and experience it has of them, on proposal of the entity in charge of managing the procedure.

2. The awarding entity shall provide the identity and contact details of the invitees to the entity in charge of managing the procedure.

Article 152 Deadline to submit bids The deadline to submit bids may not be less than ten days as from the date of delivery of the invitation.

CHAPTER V Direct award Article 153 Applicable regime The provisions governing the closed tender shall apply mutatis mutandis to the direct award.

Article 154 Simplified procedure 1. If the procedure is for the formation of personal property lease or sale agreements or services agreements with a value equal to or less than three hundred thousand Escudos (300,000$00), the procurement entity may award the contract directly on invitation submitted by the natural or corporate person invited.

2. The procurement decision and the procedure choice decision underlie the award decision provided for in the preceding paragraph.

60

CHAPTER VI Procurement of consultant services SECTION I Article 155 Regime applicable to the procurement of consultant services 1. The procedure for procurement of consultant services at an estimated value greater than four million Escudos (4,000,000$00) must be preceded by pre-qualification.

2. In the procedure, between three and six bidders must be qualified for evaluation.

3. Bidders’ qualification must be based on the following requirements among others in accordance with the purpose and objectives of the contract to be executed: a) Professional experience; and b) Qualifications of individual consultants or of the human resources proposed for the provision of the services.

4. For procurement of consultant services equal to or under four million Escudos (4,000,000$00), the awarding entity must put together a short list of at least three invitees with waiver of prequalification.

5. In the cases set out in the preceding paragraph, qualification of consultants must be based on certain requirements in accordance with the purpose and objectives of the contract to be executed, notably experience and skill of consultants regarding the services to be provided.

6. Contracts entered into with qualified staff for the performance of intellectual and continued work are exempted from the framework established by this Code, but must abide by general public procurement principles in accordance with Title I, Chapter II and other applicable law.

Article 156 Use of consulting firms or individual consultants 1. Consultant services may be provided by corporate persons that shall be designated as consulting firms, or natural persons that shall be designated as individual consultants.

2. The consultant services must be provided by consulting firms where the works to be performed involve multidisciplinary knowledge or when the volume or complexity of the works require the support of an organization with staff with a certain technical and/or academic profile and with a larger more sophisticated logistics structure.

3. The consultant services must be provided by individual consultants where hiring a natural person with ample experience and in-depth knowledge in a certain field may prove more adequate.

4. Both consulting firms and individual consultants to be hired under this statute may not be part of the organizational structure of the awarding entity or the entity to whom services shall be provided, nor be in legal relation of dependence with those entities.

5. The rules for hiring consulting firms shall apply mutatis mutandis to the procurement of individual consultants.

61

Article 157 Announcement of the procedure 1. The procedure to procure consultant services where preceded by pre-qualification shall be publicized by announcement as provided for in Title I, Chapter IV. 2. The announcement shall: a) Establish the deadline to submit expressions of interest in participating in the prequalification procedure of no less than ten days; b) Briefly describe the scope of the consultant services.

Article 158 Terms of reference In addition to the items set out in Articles 51 and 118 and in the event of pre-qualification the terms of reference must also establish: a) Technical and/or financial capacity requirements; b) The evaluation model for the bidders’ technical and/or financial qualification; c) The documents that must attach to the application; and d) The cut-off date for submission.

SECTION II Submission of bids Article 159 Deadline to submit bids The bids must be submitted within the deadline set out in the procedure documents which must be set taking account of the nature and complexity of the services to be provided and may not be less than fifteen days.

Article 160 Documents e manner of submission of the bids 1. The submission of the bids shall be subject to Article 92 and they must attach the same elements set out in the procedure documents.

2. Where a technical offer and a financial offer are submitted, the offers must be delivered in sealed and separate, duly identified envelopes, and Article 92 shall apply mutatis mutandis.

SECTION III Criteria for award and evaluation of bids Article 161 Methods for selecting bids To select bids the following methods shall be used: 62

a) b) c) d) e)

Selection based on quality and price; Selection based on quality; Selection based on a fixed budget; Selection based on price; and Selection based on consultants’ background.

Article 162 Selection based on quality and price

1. In the procurement of consultant services selection based on quality and price shall be the preferred method.

2. This method consists of a competitive procedure where the weight attributed to the quality and price will be detailed in the procedure document and determined on a case-by-case basis in accordance with the nature of the work to be performed, and usually the weighting to be given to quality and price is between 70% and 80% and 30% and 20% respectively.

3. The documents of the procedure must contain the following information: a) Precise definition of the objectives, deliverables and scope of the works to be ordered; b) Basic information to help consultants prepare their bids, including elements describing the project, if any, organization of the awarding entity, contacts with the awarding entity, logistics support to provide to the consultants.

4. Whenever one of the objectives of the consultant services is the training or transfer of knowledge, it must be described in detail as also the number of employees who will be receiving training and other similar aspects.

5. The technical and financial offers must be submitted at the same time in closed, separate and duly identified envelopes, and no amendments shall be accepted after the deadline for their submission.

6. Evaluation of the proposals shall be made in two rounds, first quality then price and the evaluation committee shall not have access to the price offer until after evaluation of the quality offers has been completed.

Article 163 Quality evaluation 1. The evaluation committee shall evaluate the technical offer taking account of the following criteria: a) The specific experience in consultant services in light of the task to be assigned; b) The quality of the proposed methodology and/or the proposed work plan; c) The professional qualifications of the proposed key personnel; d) The transfer of knowledge, if applicable.

63

2. Each criterion shall be classified on a scale of one to one hundred and then each classification shall be weighted, which will result in a grade. To ensure the proposed technical quality, a minimum grade shall be established necessary for the proposal to be considered in the final compare, of not less than seventy out of one hundred points.

Article 164 Price evaluation 1. Once evaluation of the technical offer has been completed, the awarding entity shall notify the bidders of the outcome of the evaluation, expressly indicating all bidders falling below the minimum grade and that their price offers shall be returned to them unopened upon completion of the procedure.

2. In the notice referred to in Article 164.1, indication of the date, time and venue for opening the price offers corresponding to the qualifying technical offers shall also be given.

3. The date for opening the offers shall not exceed ten days as from the notice referred to in Article 164.2.

4. The price offers shall be opened at a public opening session.

5. One hundred points may be given to the lowest price offer and grades inversely proportional to the prices of other offers, or a methodology may be followed that adequately reflects the proportion between prices. In any event, the methodology to be used and the weighting factors must be described in the procedure documents.

Article 165 Combined evaluation of quality and price 1. The full grade is obtained by adding the weighted scores for quality and price and the price weighting factor shall be chosen in accordance with the complexity of the work and the relative importance of quality.

2. The contract must be awarded to the bidder with the highest scoring offer.

3. The winning bidder may be allowed substitution of key personnel if the parties agree that the undue delay of the section procedure makes substitution unavoidable, or that those changes are crucial for achieving the work goals, provided that the replacement has equal or better professional qualifications than the initially proposed key personnel.

4. Without prejudice to the provisions in Article 165.3, if it is determined that the offer provided key personnel services without having confirmed if the personnel was available, the offer may be disqualified from the procedure.

5. Disqualification as provided for in Article 165.4 may constitute an administrative offense under this Code.

Article 166 Selection based on quality 1. Selection based on quality shall be used in the following instances: 64

a) Where the work is complex, highly specialized, where the intended deliverables are hard to specify and where the awarding entity expects consultants to provide new and creative solutions in their offers; b) Whenever the awarding entity estimates that the quality of the work and the deliverables may have future repercussions; c) Whenever expert work is indispensable; d) Where the works may be performed in substantially distinct manners, so that the offers cannot be compared.

2. In the selection based on quality it is possible either only to request submission of technical offers or simultaneous submission of technical and price offers but in separate envelopes.

3. An estimate of man-hours of key personnel may be provided in the procedure documents.

4. If only technical offers are requested, after they have been evaluated in accordance with the selection methodology based on quality and price, the awarding entity may request the bidder ranking first to submit a detailed price offer.

Article 167 Selection based on a fixed budget 1. Selection based on a fixed budget must be used if it is possible to accurately determine the consultant service budget.

2. The fixed budget must be set out in the invitation and the bidders shall submit a separate bid.

3. The fixed budget shall ensure the performance of all activities provided for in the consultant service.

Article 168 Selection based on price 1. Selection based on price is used where the consultant services to be provided are standard or routine services governed by well-defined rules.

2. Within that method a qualification requirement is established for high quality, preferably not less than eighty points out of one hundred.

3. Bidders shall submit the bids in separate envelopes and the technical offers shall be opened and evaluated first. Those falling below the minimum grade shall be rejected and the envelopes of the remaining bids shall be opened at a public opening session and the bidder offering the lowest price shall be selected.

4. In the method established by this Article minimum qualification shall be established in the procedure document, bearing in mind that all bids exceeding the minimum are just bidding as regards price.

65

Article 169 Selection based on consultants’ background.

For contracts of up to three hundred thousand escudos (300,000$00), the proposal evaluation criterion based on consultant’s background may be adopted.

Article 170 Contract negotiation 1. The terms of reference may establish a contract negotiation round solely for the bidder with the highest ranking bid, which must be held before the signature of the contract.

2. The terms of reference may also establish the aspects for the performance of the contract that are not subject to negotiation.

3. Without prejudice to the provisions in Article 170.2, only the items of the contract that were not evaluated pursuant to the evaluation criterion adopted can be subject to negotiation, notably: a) Small changes to the technical specifications, the scope of the work or the established requirements; b) Small changes to the terms and conditions of the proposed contract; c) Agreements on final payment; d) Agreement on staff mobilization; e) Clarification of any aspects that could not be considered in the procedure.

Article 171 Representation at negotiation rounds The bidder shall be represented at the negotiation rounds by the respective legal representatives or representatives duly accredited to that end.

Article 172 Negotiation round 1. The awarding entity shall notify the bidder no less than three days prior of the venue, date and time of the first negotiation round and the next rounds shall be scheduled as the awarding entity sees fit.

2. The format of the negotiations must be stated in the notice set out in Article 172.1.

3. Minutes of the negotiation rounds shall be drawn up and signed by the awarding entity and the winning bidder's representative.

4. The content of the minutes and any information or documents provided during the negotiation rounds are confidential and may be disclosed following approval of the contract’s final version.

66

Article 173 End of negotiations 1. Once the negotiation round is over the awarding entity shall submit the final version of the contract.

2. Any amendments resulting from the negotiation shall be introduced in the procurement records pursuant to Article 27 of this Code.

3. The result of the contract’s negotiation shall not alter the bidders’ final score.

CHAPTER VII Framework agreement Article 174 Types of framework agreements The awarding entities may execute framework agreements with one or more entities.

Article 175 Formation of framework agreements procedure 1. Regarding any matters on which this chapter is silent the rules provided for in this Code shall apply mutatis mutandis to the choice of procedure for the formation of a framework agreement and respective proceedings.

2. The choice of the formation of the framework agreement procedure under Article 30 only allows for the execution of contracts under it where the sum of the respective contract prices is less than the amounts set out in that Article, as applicable.

3. The program of the framework agreements formation procedure shall indicate the number of bids to award.

Article 176 Obligation to execute contracts under the framework agreements 1. The counterparty to the framework agreement undertakes to execute contracts on the terms set out in the framework agreement as the awarding entity that is party to the framework agreement may require.

2. Awarding entities are not under an obligation to execute contracts under the framework agreement regime.

Article 177 Maximum duration of framework agreements 1. Framework agreements may not have a duration greater than four years, including any express or implied extensions, save in exceptional circumstances notably in accordance with the purpose of the framework agreement.

67

2. The awarding entity must justify establishing a term longer than four years under the final part of Article 177.1.

Article 178 General rules applicable to the execution of contracts under framework agreements 1. Only parties to a framework agreement may execute agreements under it.

2. In the execution of contracts under framework agreements the parties may not introduce material amendments to the terms established in the framework agreements.

3. Where expressly provided for in the tender specifications pertaining to the framework agreement, the awarding entity may update the characteristics of the goods or services to be acquired under the framework agreement, either modifying or replacing them with others, provided that the type of supply and the objectives of the specifications established in the framework agreement formation procedure are maintained and provided it is justified in light of the occurrence of technological innovations.

Article 179 Execution of contracts under framework agreements entered into with a single counterparty 1. For the formation of contracts to be executed under framework agreements executed with only one entity the direct award procedure shall be adopted.

2. The content of the contracts mentioned in Article 179.1 must be in line with the contractual conditions established in the framework agreement and preparation of tender specifications shall not be necessary.

3. If necessary, the awarding entity may request in writing to the counterparty in the framework agreement to detail, also in writing, any aspects of its bid.

Article 180 Execution of contracts under framework agreements entered into with several counterparties 1. For the formation of contracts to be executed under framework agreements entered into with several counterparties, the awarding entity shall address to all counterparties to the framework agreements meeting the requirements for the performance of the supplies contemplated in those agreements an invitation to bid with the aspects that will be subject to evaluation for contract award purposes.

2. The invitation shall also set out the deadline and how bids will be submitted, the aspects mentioned in Article 180.1, the award criterion and the bid evaluation model established in the framework agreement formation procedure documents.

68

TITLE V Administrative challenge Article 181 Regime 1. Administrative decisions made as part of contract formation procedures conducted under this statute may be challenged as provided for in this Title.

2. Procedure documents may also be challenged.

Article 182 Types and nature of the challenge 1. Challenge may be brought as follows: a) By claim to the entity that performed the act; or b) By appeal to ARAP’s Dispute Resolution Committee.

2. Administrative challenge as set forth in Article 182.1 are optional and are not a necessary or prior requirement for judicial challenge.

3. CRC’s decisions may be judicially challenged.

Article 183 Filing claims and appeals 1. Claims and administrative appeals shall contain all points of fact and points of law deemed relevant and attach any documents deemed convenient.

2. Appeals to ARAP’s Dispute Resolution Committee shall be filed on paper and/or electronic form and imply payment of costs on the terms of the law.

3. Should the claimant or appellant consider that their claim or appeal contains confidential information they must so advise on the first and last pages and submit a typed copy without the information deemed confidential.

4. The body to whom the claim or appeal is addressed shall decide on the confidentiality request within two days and immediately notify the claimant or the appellant of the decision.

Article 184 Deadlines for filing claims and appeals 1. Claims against the resolutions of the evaluation committee at the public session shall be filed during the relevant public session and may be filed by statement dictated for the minutes or by written application.

2. Claims against other acts must be filed within five days as from their notice.

3. Appeals to ARAP’s Dispute Resolution Committee shall be filed within ten days as from notice of the acts, except for appeals against the evaluation committee’s decisions made during the public session which must be filed within five days.

69

Article 185 Withdrawal It is possible to withdraw the claim or appeal at all times by application addressed to the body with authority to decide on the claim or appeal.

Article 186 Effects of claims and appeals Administrative claims and appeals suspend the effects of the following acts: a) Contract negotiation; b) The award decision; or c)

Contract execution.

Article 187 Hearing of affected parties

1. Except for the provisions in the next paragraph, applicants or bidders that may be harmed if the claim or appeal is upheld must be notified to within five days allege whatever they may deem convenient regarding the request or its grounds.

2. If the claim is filed at the public session under Article 184.1, any affected parties present are invited to submit allegations by statement dictated for the minutes or by written application.

Article 188 Deciding on claims and appeals 1. Save for claims against evaluation committee’s resolutions within the public session that must be decided at the public session, claims shall be decided within five days from the date they were filed or, as applicable, from expiry of the deadline for the affected parties to make their positions known.

2. In the situation set out in the initial part of Article 188.1 the evaluating committee must suspend the session to resolve on the claim, and if it deems convenient it may schedule a new public session to communicate its decision and follow the subsequent public session procedure to be held within the five following days.

3. Appeals shall be decided within ten days as from the date of filing or, where applicable, from expiry of the deadline for affected parties to make their positions known.

4. The claimant or appellant and the affected parties shall be notified of the decisions regarding the claims or appeals and, in the event of an appeal to ARAP’s Dispute Resolution Committee this entity’s services shall forward copy of the appeal decisions to the relevant awarding entity.

70

TITLE VI Offences Article 189 Offences committed by applicants or bidders 1. The following are very serious offences punishable with a fine of between fifty thousand Escudos (50,000$00) and seventy-five thousand Escudos (75,000$00) or one hundred thousand Escudos (100,000$00) and three hundred thousand Escudos (300,000$00) for natural or corporate persons, respectively: a) Participation of applicant or bidder in any of the situations provided for in Article 70 at the time of submission of their application or bid, award or execution of the contract; b) Submission of false qualification documents, documents comprising the proposal and documents intended for qualification; or c) Misrepresentations during the contract formation phase.

2. The following are serious offences punishable with a fine of between twenty-five thousand Escudos (25,000$00) and sixty-five thousand Escudos (65,000$00) or seventy-five thousand Escudos (75,000$00) and one hundred and fifty thousand Escudos (150,000$00) for natural or corporate persons, respectively: a) Failure to provide a performance security within the deadlines and on the terms set out in this Code; b) For applicant or bidder consortia, the fact that their members are not incorporated prior to the execution of the contract in the legal form set out in the tender program.

3. The following are light offences punishable with a fine of between five thousand Escudos (5,000$00) and fifteen thousand Escudos (15,000$00) or fifty thousand Escudos (50,000$00) and seventy-five thousand Escudos (75,000$00) for natural or corporate persons, respectively: a) Breach of the provisions in Article 69.2; b) Failure to appear on the day, at the date and venue set out for the execution of the contract.

Article 190 Ancillary Penalties 1. In addition to the fine set out in Article 189, the offender may be assessed an ancillary penalty barring it from participating as an applicant, bidder or member of an applicant or bidder consortium in any procedure adopted for the formation of public contracts, where justified by the seriousness of the offense and the level of guilt of the agent.

2. Winning bidders that on execution of the agreement performed any act that demonstrably constitutes an event of termination attributable to them shall be subject to the assessment of the ancillary penalty.

71

3. The ancillary penalty set out in Article 190.2 must be scaled in accordance with the seriousness of the infraction and the level of guilt of the offender as determined by regulation of the entity with authority to assess it.

Article 191 Publicity of the ancillary penalty Final decisions of assessment of the ancillary penalty set out in Article 190 shall be published on the public procurement website and ARAP’s site for the entire duration of the disqualification period pursuant to Article 190.

Article 192 Criminal Liability Offender’s disregard of the final decision of assessment of the ancillary penalty set out in Article 190 shall constitute a crime of contempt under the Penal Code.

Article 193 Offences committed by the representatives of the entities in charge of managing the procedure or Public Administration officials 1. The following shall constitute a very serious offence punishable with a fine of between fifty thousand Escudos (50,000$00) and seventy-five thousand Escudos (75,000$00): a) The adoption of direct award in clear and open violation of the rules in this Code; b) The adoption of rules in the procedure documents that are discriminating and distort competition, with a view to benefiting or harming a certain economic operator or a category of economic operators; or c) Failure to comply with the resolution of the Dispute Resolution Committee without prejudice to the right to appeal to courts. d) Lack of demand, where legally required, of proof of specific professional qualification or authorizations or of members of certain professional organizations; e) Lack of demand to the winning bidder of provision of a bid security and a performance security where required by law.

2. The following shall constitute a very serious offence punishable with a fine of between twentyfive thousand Escudos (25,000$00) and sixty-five thousand Escudos (65,000$00): a) Breach of the confidentiality duty provided for in Article 21; b) Misrepresentations.

3. Failure to appear on the day, at the time and place scheduled for the execution of the contract shall constitute a light offence punishable with a fine of between five thousand Escudos (5,000$00) and fifteen thousand Escudos (15,000$00), assessable on the members of the bodies in charge of managing the procedure.

4. Awarding entities are strictly liable for the acts performed by their representatives or any officials intervening in the procedures under this Article.

72

Article 194 Penalties for unethical conduct 1. Persons intervening in the National Public Procurement System, notably interested parties, entities in charge of managing the procedure, the evaluating committee and public administration officials and economic operators may not commit acts of corruption, fraud, collusion, coercion and obstruction, otherwise the bid will be excluded or the award shall expire.

2. Commission of the actions set out in Article 194.1 may be further punished under Articles 189.1 and 193.1 and 190.

3. Breach of the ethical conduct duty which may entail revocation of UGA’s accreditation and disqualification of the member by ARAP. 4. The penalties and measures set out in Article 194.3 may be interim, in which case they must have reserved character pending process with prior hearing of the interested party, where the latter can produce evidence pending decision.

Article 195 Penalty for breach of the confidentiality duty Breach of the confidentiality duty shall constitute the offender in civil, criminal and disciplinary liability on legal terms.

Article 196 Attempt and negligence 1. Attempt and negligence are punishable.

2. In case of negligence, the lower and upper thresholds of the fines provided for in the preceding Articles shall be halved.

Article 197 Applicable regime The provisions in the general administrative offences regime shall apply to the offences set out in this Code.

TITLE VII Final provisions Article 198 Notices and communications 1. Any notices or communications between the awarding entity, the evaluating committee or the entity in charge of managing the procedure and the interested parties, the applicants, the bidders or the winning bidder must be made in writing and in Portuguese and sent by email, fax, registered letter with recorded delivery or delivered directly to the entity in charge of managing the procedure against receipt.

73

2. Notices or communications shall be deemed served or made: a) On the date of their receipt by the services of the entity in charge of managing the procedure where submitted in person; b) On the date displayed on the read notice where sent by email; c) On the date of signature of the acknowledgement of receipt where submitted by registered mail with recorded delivery; or d) On the date displayed on the successful transmission report where sent by fax.

3. Communications sent to the awarding entity, the evaluating committee or the entity in charge of managing the procedure and that are made by email or fax after 5.00p.m. in the place of receipt shall be deemed made at 10a.m. of the following business day.

Article 199 Electronic processing 1. The State is seeking to implement an electronic public procurement system to process contract formation procedures subject to this Code on an electronic platform.

2. Electronic processing of the contract formation procedure and implementation and operation of the electronic platform shall be regulated by a specific statute.

3. Use of the platform shall be mandatory for all persons intervening in the National Public Procurement System – SNCP, and a deadline shall be set to that end in the statute mentioned in Article 199.2.

Article 200 Counting deadlines 1. The following rules apply when counting deadlines: a) The day on which the event occurs from which the deadline starts to run is excluded. b) The deadline starts to run regardless of any formalities and shall be suspended on Saturdays, Sundays and national holidays; and c) If the deadline should expire on a day that the service with which the act must be performed is not open to the public it shall fall on the next following business day.

2. Deadlines set for the submission of bids, applications, any extensions of those deadlines and the period during which the bidder must keep the bid or application open shall be counted in calendar days and are not suspended on Saturdays, Sundays and holydays.

Article 201 Taxes The amounts set out in this Code and the value of the contract, the base price and the contractual price do not include any taxes, notably value added tax and are subject to specific legislation on the matter.

74

Article 202 Audits made by ARAP 1. Without prejudice to audits carried out by the relevant entities within their powers, ARAP shall carry out periodic audits to the public procurement procedures launched by entities subject to this statute.

2. The reports of the audits carried out by ARAP shall be published on its website.

Enacted on 27 February 2015.

The President of the National Assembly, BasĂ­lio Mosso Ramos

75

SCHEDULE I Model public tender announcement Announcement of public tender no. [identify] (set out in Article 24.1 of the Public Procurement Code) 1. Awarding Entity [indicate name, mail address, email address and fax number] 2. Body with authority to make the procurement decision and body with authority to authorize the expenditure 3. Entity in charge of managing the procedure [indicate name, mail address, email address and fax number] 4. Funding: The expenses associated to contract execution shall be funded by [indicate source of financing] 5. Purpose of the Tender: This tender is intended for [succinctly specify the purpose of the contract] 6. Place of performance: [specify place] 7. Contract duration: [Term of [indicate] days/months as from the date of execution of the contract] [For public works contracts: [‌] 8. Maximum price to be paid by the awarding entity (optional) 9. Obtaining the tender documents: Documents relating to this tender may be obtained [specify] [Indicate the service, mentioning the address and opening hours where tender documents may be consulted and copies obtained] 10. Cost of tender documents (if applicable): [The cost of the documents is [specify cost]. Payment may be made by [specify payment method - for instance, check, cash, wire transfer] to the benefit of [specify entity to whose benefit payment is made]. Payment must be made by [specify deadline] 11. Bids with variants are not admitted / bids with variants are admitted, subject to the conditions established in the Tender Program and the Tender Specifications (indicate accordingly). If bids with variants are admitted, indicate number of variants admitted.

12. Division in lots (if applicable), with identification per lot of the respective object and estimated value. Indication of the possibility to tender to one, several or all lots.

13. Admission requirements: Interested parties of Cabo-Verdean nationality, or with registered offices or place of business in the Republic of Cabo Verde may be admitted (1) that are not in any of the situations referred to in Article [70] of the Public Procurement Code / All interested parties may be admitted that are not in any of the situations referred to in Article [70] of the Public Procurement Code (2).

Only bidders may be admitted who have the professional qualifications required to perform the contract supplies [specify qualifications and legal grounds, where applicable] Only bidders satisfying the following technical and/or financial requirements [indicate] may be admitted, which must be proven by the following means [indicate].

76

14. Manner for submitting bids: [indicate] 15. Language of the bids and accompanying documents; 16. Date for submission of the bids: Interested parties shall submit the bids by [specify date, time and place, means and addresses or contacts] 17. Period of validity of the bids: Bidders shall be bound to keep the bids open for [indicate period], [and a bid security of [specify percentage] over the estimated value of the contract must be provided (if applicable)] 18. Award Criterion: The award criterion is [lowest price/most economically advantageous bid] [in the case of the most economically advantageous bid criterion, the bid evaluation factors must be indicated and their weighting by decreasing order of importance] 19. Public session: The public opening session shall take place [specify venue, date and time], and all bidders and bidder representatives duly accredited to that end may participate.

20. Whether or not there will be negotiation rounds and if yes, which items are not subject to negotiation.

21. Any required securities and guarantees 22. Other information 23. Identification of the announcer: [name/position] 24. Law applicable to the procedure: Date of sending of the announcement . . . (place),. . . (date), . . ., signature ‌ In case of national publicity.

(2) In case of international publicity.

77

SCHEDULE II Model two-round public tender announcement Announcement of two-round public tender no. [identify] (set out in Article 24.1 of the Public Procurement Code) 1. Awarding Entity [indicate name, mail address, email address and fax number] 2. Body with authority to make the procurement decision and body with authority to authorize the expenditure 3. Entity in charge of managing the procedure [indicate name, mail address, email address and fax number] 4. Funding: The expenses associated to contract execution shall be funded by [indicate source of financing] 5. Purpose of the Tender: This tender is intended for [succinctly specify the purpose of the contract] [In public works contracts the type of contract must be specified pursuant to Article [●] of [●] as well as price payment methods] 6. Place of performance: [give place] 7. Contract duration: [Term of [indicate] days/months as from the date of execution of the agreement] [For public works contracts: […]

8. Maximum price to be paid by the awarding entity (optional) 9. Obtaining the tender documents: Documents relating to this tender may be obtained [specify] [Indicate the service, mentioning the address and opening hours where tender documents may be consulted and copies obtained] 10. Cost of tender documents (if applicable): [The cost of the documents is [specify cost]. Payment may be made by [specify payment method - for instance, check, cash, wire transfer] to the benefit of [specify entity to whose benefit payment is made]. Payment must be made by [specify deadline] 11. Division in lots (if applicable), with identification per lot of the respective object and estimated value. Indication of the possibility to tender to one, several or all lots.

12. Admission requirements: Interested parties of Cabo-Verdean nationality, or with registered offices or place of business in the Republic of Cabo Verde may be admitted (1) that are not in any of the situations referred to in Article [70] of the Public Procurement Code / All interested parties may be admitted that are not in any of the situations referred to in Article [70] of the Public Procurement Code (2).

Only bidders may be admitted who have the professional qualifications required to perform the contract supplies [specify qualifications and legal grounds, where applicable] Only bidders satisfying the following technical and/or financial requirements [indicate] may be admitted, which must be proven by the following means [indicate].

13. How to submit initial technical offers, final technical offers and financial offers: [indicate] 14. Language of the bids and accompanying documents; 78

15. Date for submission of initial technical offers: Interested parties shall submit the bids by [specify date, time and place, means and addresses or contacts] 16. Period of validity of the bids: Bidders shall be bound to keep the bids open for [indicate period], [and a bid security of [specify percentage] over the estimated value of the contract must be provided (if applicable) 17. Initial technical offers’ public opening session: The public opening session for the initial technical offers shall take place [specify venue, date and time], and all bidders and bidder representatives duly accredited to that end may participate.

18. Submission and evaluation of final technical offers and financial offers: Interested parties shall deliver the final technical offers and the financial offers within [specify] days as from the date of notice of the invitation 19. Award Criterion: Specify the offers' evaluation factors and respective weighting by decreasing order of importance 20. Public opening session for final technical offers and financial offers: The public opening session for the final technical offers and financial offers shall take place [specify venue, date and time], and all bidders and bidder representatives duly accredited to that end may participate.

21. Any required securities and guarantees 22. Other information 23. Identification of the announcer: [name/position] 24. Law applicable to the procedure: Date of sending of the announcement . . . (place),. . . (date), . . ., signature ‌ (1) In case of national publicity.

(2) In case of international publicity.

79

SCHEDULE III Model for the announcement of pre-qualification procedures Announcement of pre-qualification procedure no. [identify] (set out in Article 24.1 of the Public Procurement Code) 1. Awarding Entity [indicate name, mail address, email address and fax number] 2. Body with authority to make the procurement decision and body with authority to authorize the expenditure 3. Entity in charge of managing the procedure [indicate name, mail address, email address and fax number] 4. Funding: The expenses associated to contract execution shall be funded by [indicate source of financing] 5. Purpose of the Tender: This tender is intended for [succinctly specify the purpose of the contract] 6. Place of performance: [specify place] 7. Contract duration: [Term of [indicate] days/months as from the date of execution of the agreement] [For public works contracts: [‌] 8. Maximum price to be paid by the awarding entity (optional) 9. Obtaining the tender documents: Documents relating to this tender may be obtained [specify] [Indicate the service, mentioning the address and opening hours where tender documents may be consulted and copies obtained] 10. Cost of tender documents (if applicable): [The cost of the documents is [specify cost]. Payment may be made by [specify payment method - for instance, check, cash, wire transfer] to the benefit of [specify entity to whose benefit payment is made]. Payment must be made by [specify deadline] 11. Bids with variants are not admitted / bids with variants are admitted, subject to the conditions established in the Tender Program and the Tender Specifications (indicate accordingly) 12. Division in lots (if applicable), with identification per lot of the respective object and estimated value. Indication of the possibility to tender to one, several or all lots.

13. Admission requirements: Interested parties of Cabo-Verdean nationality, or with registered offices or place of business in the Republic of Cabo Verde may be admitted that are not in any of the situations referred to in Article [70] of the Public Procurement Code (1) / All interested parties may be admitted that are not in any of the situations referred to in Article [70] of the Public Procurement Code (2).

Only applicants/bidders may be admitted who have the professional qualifications required to perform the contract supplies [specify qualifications and legal grounds, where applicable] 14. Manner for submitting applications/bids: [indicate] 15. Language of the applications/bids and accompanying documents;

80

16. Date of submission of the applications; Interested parties shall submit the applications by [specify date, time and place, means and addresses or contacts] 17. Qualification requirements and criteria [specify] 18. Minimum and maximum number of applicants to be qualified (where applicable) 19. Applications’ public opening session: The public opening session for the applications shall take place [specify venue, date and time], and all applicants and applicant representatives duly accredited to that end may participate; 20. Date for submission of the applications: Interested parties shall deliver the applications within [specify] days as from the date of notice of the invitation 21. Period of validity of the bids: Bidders shall be bound to keep the bids open for [indicate period], [and a bid security of [specify percentage] over the estimated value of the contract must be provided (if applicable)] 22. Award Criterion: The award criterion is [lowest price/most economically advantageous bid] [In the case of the most economically advantageous bid criterion, the bid evaluation factors must be indicated and their weighting by decreasing order of importance] 23. Public opening session: The public opening session for the bids shall take place [specify venue, date and time], and all bidders and bidder representatives duly accredited to that end may participate.

24. Whether or not there will be negotiation rounds and if yes, which items are not subject to negotiation.

25. Any required securities and guarantees 26. Other information 27. Identification of the announcer: [name/position] 28. Law applicable to the procedure: Date of sending of the announcement In case of national publicity.

(2) In case of international publicity. . . . (place),. . . (date), . . ., signature ‌

81

SCHEDULE IV Model declaration concerning grounds for exclusion (set out in Article 71 of the Public Procurement Code) 1 - ... (name, number of ID document and address), in the capacity of legal representative of (1). . . (name, tax ID number and registered offices or, for bidder consortia, names, tax ID numbers and registered offices), applicant/bidders in the procedure of. . . (name or reference to the relevant procedure), hereby declares under oath that the entity he/she represents (2): a) Is not insolvent or bankrupt, winding up, suspending its business activities, subject to court administration or in any other similar situation, or with any proceedings for any of the above pending against it; b) Has not or, in the case of a legal entity, the acting members of its management or administration bodies have not, been convicted of a crime or offense relating to their professional conduct by court ruling transited in res judicata (3); c) Is not barred from participating in procurement procedures due to misrepresentations in any previous procedure; d) Has no outstanding contributions to social security in Cabo Verde or their home country or the country of its principal place of business; e) Has no outstanding taxes to the State of Cabo Verde or their home country or the country of its principal place of business; f) Has not or, in the case of a legal entity, the acting members of its management or administration bodies have not, been convicted of a crime of participation in a criminal organization, corruption, fraud or money laundering or, if the procedure contemplates execution of a works contract or public works concession agreement, for the commission of any offenses which under the legal framework for access to and performance of construction activities would bar their access to that activity, by court ruling transited in res judicata; g) It did in no way participate nor will it participate, directly or indirectly, in the preparation of the procedure, nor will any of its representatives or staff; h) It did in no way participate nor will it participate directly or indirectly in any contract covered by the consultant services contemplated by the procedure, nor will any of its representatives or staff; 2 – The declarant attaches [or indicates . . . as Internet website where one may consult (5)] the documents demonstrating that its principal (6) does not fall in any of the situations set out in paragraph 7.1(b), (d), (e) and (f) above.

3 – The declarant is fully aware that misrepresentations shall entail, as applicable, exclusion of the application or the bid or expiry of the award and constitute a very serious administrative offense which may determine the assessment of the ancillary penalty of forfeiture of the right to participate as bidder or member of an applicant of bidder consortium in any procedure adopted for the formation of public contracts without prejudice to reporting the offense to the relevant entity for purposes of criminal procedure.

82

. . . (place),. . . (date), . . . [signature] (1) Applicable only to bidding companies.

(2) For natural persons, delete the expression “its principal”.

(3) Please state whether rehabilitation occurred in the meantime.

(4) Applicable to procedures for the formation of consultant services agreement; (5) Add required information to the consultation, if any.

(6) For natural persons, delete the expression “its principal”.

(7) Only applicable following notice of the award decision pursuant to Article 102 of the Public Procurement Code.

83

SCHEDULE V Model declaration of acceptance of the tender specifications (set out in Article 79.1(b) of the Public Procurement Code) 1 - . . . (name, number of ID document and address), in the capacity of legal representative of (1). . . (name, taxpayer ID number and registered offices and for bidder consortia, names, taxpayer ID numbers and registered offices), having fully and perfectly noted the tender specifications concerning the performance of the contract to be executed following the _____ procedure. . . (name or reference of the relevant procedure) hereby declares under oath that its principal (2) undertakes to perform the contract in accordance with the content of those tender specifications and that it unreservedly accepts all its clauses.

2 — It further declares that it shall perform the contract on the terms provided for in the following documents, hereto attached (3): a) . . . b) . . .

3 - If further declares that it waives special jurisdiction and subjects itself in connection with the performance of the agreement to the provisions in applicable Cabo-Verdean legislation.

4 – The declarant is fully aware that misrepresentations shall entail, as applicable, exclusion of the bid or expiry of the award and constitute a very serious administrative offense under the Public Procurement Code which may determine the assessment of the ancillary penalty of forfeiture of the right to participate as bidder or member of an applicant of bidder consortium in any procedure adopted for the formation of public contracts without prejudice to reporting the offense to the relevant entity for purposes of criminal procedure. . . . (place),. . . (date), . . . [signature].

(1) Applicable only to bidding companies.

(2) For natural persons, delete the expression “its principal”.

(3) List all documents comprising the bid in addition to this declaration under Article [77] of the Public Procurement Code.

84

SCHEDULE VI Model contract sheets Registry of Contracts no. [specify] (set out in Article 25 of the Public Procurement Code) 1. Purpose of the Contract – specify the purpose of the contract 2. Value of the Contract1 – specify total procurement cost free of taxes 3. Type of procedure2 – specify the type of procedure chosen 4. Publication3 – specify date and place of publication of the procedure 5. Awarding Entity – identify the awarding entity 6. Winning Bidder – identify the winning bidder 7. Date of signature – indicate date on which the contract was signed 8. Duration of the contract – specify the term of the contract 9. Renewal clause – specify whether or not the contract is renewable 10. Financing - specify the project and economic heading under which the contract shall be performed

1

Cf. Article 31 of the PPC

2

Cf. Article 29 of the PPC

3

Cf. Articles 24 and 25 of the PPC

85

SCHEDULE VII Model procurement registration sheet Procurement registration no. [identify number of procedure] (set out in Article 27.2 of the Public Procurement Code) 1. Specify supplies contemplated in the procedure – specify purpose established in the procedure documents; 2. Procurement decision4, expenditure approval decision and choice of procedure decision5 - notify the content of the procurement and expenditure approval decisions with identification of the decision-making entity and identify the procedure chosen and grounds for it if the choice was made in accordance with the purpose; 3. Economic heading – specify the project and budget item under which the expense will fall; 4. Procedure documents6 – identify the procedure documents produced; 5. Clarifications regarding the procedure documents 7 – record the requests for clarifications and answers, if any, and their respective dates; 6. Rectifications to the procedure documents8 – record the rectifications made by the awarding entity or UGA to the procedure documents as a result of the clarifications; 7. Identification of applicants and/or bidders – identify the applicants and bidders to the prequalification procedure and for consultant services procurement and the bidders for all other procedures; 9. Applications, if applicable, and bids – record which applications were entered in the prequalification procedure and consultant services procurement and the bids submitted; 10. Clarifications regarding the applications, where applicable, and the bids 9 – record the requests for clarifications regarding the applications and bids, if any, and their respective dates;

4

Cf. Articles 55 and 56 of the PPC

5

Cf. Articles 30 and 34 of the PPC

6

Cf. Article 40 of the PPC

7

Cf. Article 52 of the PPC

8

Cf. Article 53 of the PPC

9

Cf. Article 97 of the PPC

86

11. Minutes of the public session10, if applicable, and other relevant procedure minutes – notify the public session minutes, whether or not other minutes were drawn up with the due record of their date, place and time and whether or not a certificate was issued; 12. Application evaluation reports, where applicable, and bid evaluation reports11 – record whether or not preliminary and final evaluation reports were drawn up and their dates; 13. Negotiation documents, where applicable12 – identify the negotiation documents produced, notably notices, minutes, reports and any other as part of consultant services procurement; 14. Award decision – notify the award decision, the decision-making entity and the date; 15. Identification of the winning bidder – identify the winning bidder; 16. Value of the contract13 – record the total value of the contract free of taxes; 16. Draft contract and contract14 – inform whether a draft contract and contract were drawn up and record the parties that initialed the contract and its date; 17. Other relevant documents – record other information or documents deemed relevant and not identified above.

10

Cf. Articles 122.11 and 125 of the PPC

11

Cf. Articles 129 and 130 of the PPC

12

Cf. Articles 171 and 172 of the PPC

13

Ver Artigo 31º do CCP

14

Cf. Articles 112, 115 and 116 of the PPC

87

FED/2016/374-483 VersĂŁo traduzida por VDA