The ASSAM PUBLIC PROCUREMENT ACT, 2017
Registered No.-768/97

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# THE ASSAM GAZETTE

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###### EXTRAORDINARY

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###### PUBLISHED BY THE AUTHORITY

'if~ 141 ~~. ~!Jfi1<qf<fl, 11 ~felai. 2017, 211>~. 1939 ~)

No. 141 Dispur, Tuesday, 11th April, 2017, 21st Chaitra, 1939 (S.E.)

GOVERNMENT OF ASSAM

ORDERSBYTHEGOVERNOR

LEGISLATIVE DEPARTMENT : : : LEGISLATIVE BRANCH

NOTIFICATION

The 11th April, 20 17

No. LGL.243/2016117.- The following Act of the Assam Legislative Assembly which

received the assent of the Governor on 6th April, 2017 is hereby published for general information.

###### ASSAM ACT NO. XXIV OF 2017

 (Received the assent of the Governor on 6th April, 2017)

THE ASSAM PUBLIC PROCUREMENT ACT, 2017


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1024 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017

###### AN
##### ACT

to establish legal foundations for procedures for procurement by public entities so as to ensure -
_timely delivery_ _of_ _Intended_ _outcomes_ _with_ _e/flclency,_ _economy,_ _integrity_ _and_ _accountability;_
_transparency, fair and equitable treatment of bidders; public confidence regarding good governance_

              - in _the process and for matters connected therewith or incidental thereto._

_Preflmble_ _Whereas,_ _it is expedient to establish legal foundations for procedures for procurement_
_by public entities so as to ensure,_                     -

_(i)_ _timely delivery_ _of_ _its_ _intended_ _outcomes_ _with efficiency,_ _economy,_
_professionalism and_ _public accountability from its officers and staff;_

_{il}_ . _the highest standards of transparency, fairness, equality towards Its bidders;_

_(Ill)_ _support to policies of the State on soda/,_ _economic and environmental issues;_
_and_
_(lv)_ _assurance_ to public and other stakeholders regarding probity and integrity of
_the process._

_It is hereby enacted in the Sixty-eighth Year of the Republic of Indio, as follows:-_

CHAPTER I

###### Preliminary

1. Short title, exteDt and commencement.·

(1) This Act may be called the Assam Public Procurement Act, 2017.

(2) It shall extend to the whole of the State of Assam.

(3) It shall come into force on such date as the State Government may, by
###### notification in the Official Gazette, appoint: Provided that different dates may
be appointed for different provisions of this Act and any reference in any
such provision to the commencement of this Act shall be construed as a
reference to the coming into force of that provision.

2. Deftaitions.- In this Act, unless the context otherwise requires,-

(a) "bid" means a formal offer made in pursuance of an invitation by a procuring
entity and includes any tender, proposal (technical or financial) or quotation;

(b) "bidder" means any person, company, firm, agency, institution, etc.
participating in a procurement process of a procuring entity for procurement
of Goods, Works or Services;

(c} "bidder registration documents" means the documents issued by a
procuring entity, including any amendments thereto, that set out the terms
and conditions of registration proceedings and includes the invitation to

register;


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THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017 1025

(d) "bidding documents, means documents for procurement of Goods, Works or
Services issued by the procuring entity, including any ame.ndments thereto, that
set out the terms and conditions of the given procurement and includes the
invitation to bid; The term "bidding document" also includes the "Request for
Proposal" and "Request for Quotation" documents used for hiring consultancy
and non-consultancy services.

(e) "bid security" means a security provided to the procuring entity by a
bidder for securing the fulfillment of any obligation in terms of the
provisions of the bidding documents;

(f) "competent authority" means a person, body of persons, organs or an agency
competent to take actions as may be referred to or directed to it by the
Authority under this Act or the Rules or Guidelines made hereunder or by the
provisions of any other law for the time being in force;

(g) "e-procurement" means the electronic process where in the physical tendering
activity is carried out online using the Internet and associated technologies;

(h) "electronic reverse auction" means an online real- time purchasing
technique utilized by the procuring entity to .select the successful submission,
which involves presentation by bidders of successively lowered bids during a
scheduled period of time and the automatic evaluation of bids;

(i) · "Framework agreement procedure" means a procedure conducted in two
stages: a first stage to select a supplier (or suppliers) or a contractor (or

contractors) to be a party (or parties) to a framework agreement with a
procuring entity, and a second stage to award a procurement contract under the
framework agreement to a supplier or contractor party;

G) "Framework agreement" ~eans an agreement between the procuring entity and
the selected supplier (or suppliers). or contractor (or contractors) concluded
upon completion of the first stage of the framework agreement procedure;

(k) "Closed framework agreement" means a framework agreement to which no
supplier or contractor or State Agency acting as Consortium on behalf of PPP

registered MSE to the framework agreement that is not initially a party to the
###### framework agreement may subsequently become a party;

(1) "()pea hnework. agreement" means a framework agreement to which a
sepplier (or suppliers) or a contractor (or contractors) in addition to the initial
parties may subsequently become a party or parties;


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1026 THE ASSAM_ GAZETTE, EXTRAORDINARY, APRIL 11 , 2017

(m) "Framework agreement procedure with second-stage competition" means a
procedure under .an open framework agreement or a closed framework
agreement with more than one supplier or contractor in which certain terms and
conditions of the procurement that cannot be established with sufficient
precision when the framework agreement is concluded are to be established or
refined through a second- stage competition;

(n) "Pl'IIDCWOrk agreement procedure without second-stage competition" means a
## ~ under a closed framework agreement in which all terms and

CODdidons of the procurement are established when the framework agreement
is concluded;

(o) "goods" includes all articles, material, commpdities, electricity, livestock,
furniture, fixtures, raw material, spares, instruments, software, machinery,
equipment, industrial plant, vehicles, aircraft, ships, railway rolling stock
and any other category of goods, whether in solid, liquid or gaseous form,
purchased or otherwise acquired for the use of a procuring entity as well as·
services or ~orks incidental to the supply of the goods if the value of
services or works or both does not exceed that of the goods themselves;

(p) "invitation to bid" means a document published by the procuring entity
inviting bids relating to the subject matter of procurement and any
amendment thereto and . includes notice inviting tender and request for
proposal;

(q) "notification" means a notification published in the Official Gazette;
(r) "prescribed" means prescribed by rules made under this Act;

(s) "pre-qualification" means the procedure set out to identify, prior to inviting
bids, the bidders that are qualified;

(t) "pre-qualification documents" means the documents issued by a procuring
entity, including any amendments thereto, that set out the terms and
conditions of the pre-qualification .proceedings and includes the invitation to
pre-qualify;

(u) "procurement" or "public procurement" means the acquisition by purchase,
lease, license or otherwise of works, goods or services, including award of
Public Private Partnership projects, by a procuring entity whether directly or
through an agency with which a contract for procurement services is entered
into, but does not include any acquisition without consideration,
and "procure" or "procured" shall be construed accordingly;

(v) "procurement contract" means a contract entered into between the procuring
entity and a successful bidder concerning the subject matter of procurement;


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THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11, 2017 1027

(w) "procurement process" means the process            - f procurement extending from
the imte of invitation to pre-qualify or to register or to bid till the award of
the procurement contract or cancellation of the procurement process, as the

case may be;

(x) "procuring entity" means an entity referred to in sub- section (2) of section 3;

(y) "Public Private Partnership" means · an arrangement between the State
Government, statutory entity or any other government owned entity on one
side and a private sector entity on the other, for the provision of public assets
or public services or both, through investments being made or management
being undertaken, or both investments being made and management being
undertaken, by the private sector entity, for a specified period of time, where
there is well defined allocation of risk between the private sector and the State
Government, statutory entity or any other government owned entity, as the case
may be, and the private entity receives performance linked payments that
conform (or are benchmarked) to specified and pre-determined performance
standards, measurable by the State Government, statutory entity or any other
government owned entity, as the case may be, or its representative;

(z) "rate contract" means an agreement between a procuring entity and one
or more bidders which specifies the terms and conditions including the price,
for the supply of a subject matter of procurement required on a recurring basis;

{za) "registered bidder" means any bidder who is on a list of registered bidders
of the procuring entity maintained under section 19;

(zb) "services" means any subject matter of procurement other than goods or works
###### and includes physical, maintenance, professional, intellectual, consultancy and advisory services or any service classified or declared as such by a procuring
entity and does not include appointment of any person made by any procuring
entity;

(zc) "subject matter of procurement" means any item of procurement whether in
the form of goods, services or works;
{zd) "works" means all works associated with the construction, reconstruction,
site preparation, demolition, repair, maintenance, or renovation or railways

roads, highways or a building, an infrastructure, or structure or an installation
or any construction work relating to excavation, drilling, installation of

equipment and materials, as well as services or goods incidental or
consequential to the works if the value of those services or goods does not
exceed that of the works themselves;

(ze) "State Government" means the Government of Assam;
(zf) "Swiss Challenge" means a method of Procurement in which an unsolicited
proposal for a government project is received and third party are allowed to
challenge the original proposal through open bidding, and then the original


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1028 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017

proponent is given a chance to counter-match the most advantageous _I_ most
competitive offer;

**3.** **Application .-**

(1) This Act shall apply to all procuring entities referred to in sub-section (2).

(2) For the purposes of this Act, "procuring entity, means,-

(a) any department of the State Government or its attached or subordinate

office;

(b) any State Public Sector Enterprise owned or controlled by the State
Government;

(c) any entity established or constituted by the Constitution of India whose

expenditure is met from the Consolidated Fund of the State;

(d) any entity or board or corporation or authority or society or trust or

autonomous entity (by whatever name called) established or constituted by
###### an Act of the State Legislature or an entity owned or controlled by the
State· Oovemment;

(e) any other entity which the State Government may, by notification, specify

to be a procuring entity for the purpose of this Act, being an entity that
receives substantial financial assistance from the State Government in so
far as the utilization of such assistance towards procurement
is concerned.

(f) any procurement support agency or procurement agent or procurement

consultant involved in procurement on behalf of the procuring entities
specified in clauses (a) to (e) above.

(3) The State Government may, by notification, permit the procuring entities to

carry out procurement, financed under the assistance from the multilateral
development banks, bilateral development agencies, or foreign governments or
pursuant to an inter-governmental agreement, in accordance with the procurement
procedures stipulated in terms of such assistance or agreement:

Provided that before granting permission, the State Government shall
satisfy itself that the procurement procedures stipulated in terms of such assistance
or agreement, are in consonance with the basic norms of public procurement
specified in sub-section (1) of Section 4.

(4) Subject to such rules as may be made in this behalf consistent with the provisions

of sections 4 and 11, the provisions of Chapters II and III shall not apply to, -


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THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017 1029

(a) any procurement the estimated cost or value of which is less than the
thNshold value as Finance Department of the State Government may, by
notification, specify for different classes or categories of procurements or
procwing entities;

(b) ~y procurement necessary for the management of any disaster, as

defined in clause (d) of section 2 ofthe Disaster Management Act, 2005 Central Act

no. _53_ of

(c) the·procurement under Assembly and Parliamentary election urgency; 2005

(d) procurement for the purposes of security or on strategic considerations that
the State Government may, by general or special order, specify;

(e) procurement by a procuring entity under clause (b) to clause (e) of sub
section(2) of section 3 from its subsidiary company or joint venture
company in which such procuring entity has more than fifty percent share;

(f) any other procurement, as may be notified by Finance Department.


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1030 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11, 2017

CHAPTER II
_Procurement_
_A._ _General Principles_
4. Fundamental principles of public procurement.-

( I) In relation to a public procurement, the procuring·entity shall have the
responsibility and accountability to ensure

{a) effective and timely achievement of the planned outcomes of the
procurement without excessive cost over-run;

(b) transparency (including consistency, objectivity, predictability,
openness), fairness (including appeal rights), equality (including non-
discrimination) in relations with the bidders;

(c) professionalism, economy and efficiency, from official involved in
process;

(d) compliance with the code of integrity in public procurement as laid down
by the State Government under section 11 of this act by officer or
employee of a procuring entity or a person participating in a procurement
process.

(2) Subject to the provision of sub-section (3) of section 3, every procuring
entity shall carry out its procurement in accordance with the provisions
of this Act and the rules and guidelines made there under.
S. Determination of need for procurement and description thereof.-
(I) All procurement under this Act shall be initiated after first determining the
need for the subject matter of procurement and after fulfilling the obligations
under Section 8 below, duly taking into account the matters so prescribed in
this regard in the rules made under this Act.
(2) While assessing the need under sub-section ( 1 ), the procuring entity shall take
into account the estimated cost of the procu~ement and also decide on the
following matters, namely:-
(a) the scope or quantity of procurement, if determined;

(b) Ensure that the need is neither artificially created nor exaggerated, with the

intention to channel benefits to certain individual(s) or organization(s);

(c) ensure transparency and not restrict dialogue for determining solutions for

the need only with certain individual(s) or organization(s) giving them

undue advantage by way of access to inside information not disclosed or

disclosed late to others;

(d) limitation on participation of bidders in terms of section 6, if any
applicable, and justification thereof; and
(e) any other matter as may be prescribed.


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THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11, 2017 1031

(3) The procuring entity shaH maintain documents relating to the determination of
the need for procurement under sub~section ( 1) and the assessment made under
sub-section (2).

(4) Procurement Planning:

. (a) Every procurement entity shall prepare a Procurement Plan along with
their proposal for Annual Budgetary Allocations for a Financial Year
and the Plan shall be updated as per the approved Annual Budget
Allocation for the entity. The updated Procurement Plan shall be
approved by the concerned Administrative Department within 15 days
of receipt of Budget Communication from the Finance Department of
the State Government.

(b) The Procurement Plan, including its updates, shall set forth at the
minimum the following:~

(i) a brief description of goods, works, and/or non-consulting
services for which procurement action is to take place during the
respective financial year;

(ii) the proposed methods of procurement pursuant to the provisions
in this Act and the Rules made there under;

(iii) any provision of preference in accordance to Section~6 of the
Act;

(iv) the review thresholds as per the DFP Rules of the State
Govertunent;

(v) the time schedule for key procurement activities; and

(vi) any other information.

(c) The Procurement Plan prepared pursuant to sub-clause (4) ( a) of this
section may be further updated by the procurement entity with approval
of the concerned Administrative Department, provided that the updated
shall remain within the approved Annual Budgetary Allocation for the
procurement entity.

(d) The procuring entity shall publish the Procurement Plan prepared
pursuant to sub-clause 4 of this section on the State Public Procurement
Portal and in the website of the concerned procuring entity:

Provided that the publication of information under this clause
shall not be construed as initiation of procurement process and cast any
obligation on the procuring entity to issue bidding document or confer
any right on pr~spective bidders.

**6.** **Participation of bidders.-**

(1) The procuring entity .shall not establish any requirement aimed at limiting
participation of bidders in the procurement process that discriminats against or


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1032 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017

among bidders or against any category thereof, except when authorized or
required to do so by this Act or the rules or guidelines made thereunder
or by the provisions of any other law for the time being in force.
(2) In addition and Without prejudice to any existing provisions of enactment of
Procurement Preference Policy, Assam, 2015, the State Government may, by
notification in this behalf, provide for mandatory procurement of any
subject matter of procurement from any category of bidders, and
pW'Chase or price preference in procurement from any category of bidders, on
the following grounds, namely:-
(a) the promotion of domestic industry;
(b) socio-economic policy of the Central Government or the State
Government;

(c) any other consideration in public interest in furtherance of a duly
notified policy of the Central Government or the State Government:

Provided that any such notification shall contain a reasoned
justification for such mandatory or preferential procurement, the
category of suppliers chosen and the nature of preference provided.
(3) The procuring entity, when inviting the participation of
bidders in the procurement process, shall declare whether participation of
bidders is limited pursuant to this section and on what ground and any such
declaration may not ordinarily be later altered.

(4) Nothing in this section shall be construed as preventing the State Government
or any procuring entity from imposing or enforcing measures limiting
participation on account of the need,-
(a) to protect public order, morality or safety;
(b) to protect human, animal or plant life or their health;

(c) to protect intellectual property;
(d) to protect the essential security and strategic interest of
India.
(5) Eligibility Conditions:

(a) The procuring entity may however lay down reasonable Eligibility
Conditions for participation in the procurement process, as distinct
from and in addition to any technical or financial qualification
criteria, if prescribed, to ensure compliance with the Transparency
and Code oflntegrity as enunciated in Section 4(1) (b) and (d). Rules
and guidelines hereunder may lay down eligibility conditions that
may be prescribed by procuring entities.

(b) Any bidder participating in the procurement process shall, -

(i) have fulfilled his obligation to pay such of tpe taxes payable
to the Central Government or the State Government or any
local authority as may be specified in the bidding


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THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017 1033

documents, pre-qualification documents or bidder
registration documents;

(ii) not be insolvent, in receivership, bankrupt or being wound
up,' not have its affairs administered by a court or a judicial
officer, not have its business activities suspended and must
not be the subject oflegal proceedings for any of the foregoing
reasons;

(iii) not have, and their directors and officers not have, been
convicted of any criminal offence related to their professional
conduct or the making of false statements or
misrepresentations as to their qualifications to enter into a
procurement contract within a period of three years preceding
the commencement of the procurement process, or not have
been otherwise disqualified pursuant to debarment
proceedings;

(iv) not have a conflict of interest as may be prescribed
and specified · in the pre-qualification documents, bidder
registration documents or bidding documents, which
materially affects fair competition;

(v) fulfill any other Eligibility Condition as may be
prescribed, in tenns of subsection 5(a) above.
**7.** **Qualifications of bidders.-**

###### (l) A procuring entity may detennine and ~pply one or more of the requirements
specified in sub-section (2) for a bidder to be qualified for participating in a

p~urement process, as distinct from and in addition to any eligibility
conditions, if prescribed.

(2) Any bidder participating in the procurement process shall, -

(a) possess the necessary professional, technical, quality assurance,
financial and managerial resources, certification and experience and
competencies required, if any, by the bidding documents, pre-
qualification documents or bidder registration documents, as the case
may be, issued by the procuring entity;

(b) fulfill any other qualifications as may be prescribed.

(3) Subject to the right of bidders to protect their intellectual property or trade
secrets the procuring entity may require a bidder to provide any such
infonnation or declaration as it considers necessary to make an evaluation in
accordance with sub-s~ction (5) of Section 6 and sub-section (1) above.


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1 034 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017

(4) Any requirement established pursuant to section 6 and section 7 shall be set
out in the pre-qualification documents or bidder registration documents, if
any, and in the bidding documents and shall apply equally to all bidders.

(5) The procuring entity shall evaluate the eligibility and qualifications of
bidders only in accordance with the requirement specified in this sections 6
and 7.
**8.** **Obligations related to value of procurement.-**
( I) Initiating Procurement after due approvals,-

(a) every procuring entity shall initiate the procurement process only after
technical, administrative and budgetary approvals are accorded and
after obtaining the approval of the authority which has the necessary
financial powers to initiate such value and category of procurement as
per the rules and guidelines made under this Act.
(b) however, procuring entity to save time, may initiate advance actions
of procurement in anticipation of administrative and budgetary
approvals, under certain circumstances and following procedures
prescribed with the approval of an authority designated in this regard
in the rules made under this Act, provided that the procurement
process shall stop short of any financial or contractual commitment,
even in such cases unless administrative. and budgetary approvals
have been obtained.
(c) the Government shall lay down the circumstances, procedures and
designated authority for initiating such advance procurement under
sub-section (b) above.

(2) Each Procuring entity shall maintain a register of works and order of
supplies of goods and services, liabilities incurred against these works and
orders of supplies, liabilities cleared and liabilities awaiting clearance, in a
fonnat as may be prescribed:

Provided that the Government may make Rules not to sanction new
work if the outstanding liabilities in a Department exceed a limit as may be
prescribed.
{3) A procuring entity shall neither divide or bulk its procurement nor use a
particular valuation method for estimating the value of procurement so as to
avoid its obligations under sub-section ( 1) or to limit competition among
bidders or otherwise avoid its obligations under this Act:

Provided that in the interest of efficiency, economy and timely
completion or supply, a procuring entity may, for reasons to be recorded in
writing, divide or bulk its procurement into appropriate packages prior to
invitation of bid.


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THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11, 2017 1035

9. Time frame for processing.-

( I) Subject to the rules as may be made by the State Government in this behalf,
every procuring entity shall pre-determine a reasonable time frame for
completion of various stages of the process of procurement and indicate the
same in the pre-qualification documents, bidder registration documents or
bidding documents, as the case may be.
(2) The procuring entity shall endeavor to adhere to the time frame indicated
under sub-section (1) and in case of failure to do so extend such time frame
for reaSons to be recorded in writing.

###### 10. Documentary record of procurement proceedings and of communications.-
( I) The procuring entity shall maintain a record of its procurement proceedings,
which shall include the following, namely:-

( a) Bid Dociunents of Bidders and certified copy of Contract Agreement
with the successful bidders
{b) Description of the subject matter of the procurement under
section 12;

(c) Statement of the reason for choice of a procurement
method other than open competitive bidding under sub-section (4)
of section 29
(d) Particulars of the participating bidders;
(e) Written requests for clarifications and any responses thereto
including during pre-bid conferences;
(f) Bid prices and other financial terms;

(g) Summary of the evaluation of bids;
(h) Details of any appeal under section 38, and the related decisions;
(i) Any other information or record as may be prescribed.
(2) Any document, notification, decision or other information
generated in the course of a procurement,. including in connection with
appeals under section 38 or in the course of a meeting, or forming part of the
record of the procurement process, shall be in a form that provides a record
of the content of the information and is accessible so as to be usable for

subsequent reference.
(3) Subject to the provisions of the Right to Information Act, 2005 or of any Central Act

No.ll of

other law for the time being in force relating to retention of records, the :zoos
procuring entity shall retain the documentary record indicated in sub-
sections ( 1) and (2), for a reasonable period after the expiry of the
procurement process or procurement contract, as the case may be, so as to
enable audit or such other review.


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1036 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11, 2017

###### 11. Code of integrity for pro~uring entity and bidders.-
(1) No officer or employee of a procuring entity or a person participating in a
procurement process shall act in contravention of the code of integrity
prescribed by the State Government.
(2) The code of integrity referred to sub-section (1) shall include provisions for,-
(a) prohibiting, -
(i) any offer, solicitation or acceptance of any bribe, reward or gift or
any material benefit, either directly or indirectly, in exchange for an
unfair advantage in the procurement process or to otherwise
influence the procurement process;
(ii) any omission, including a misrepresentation that misleads or

attempts to mislead so as to obtain a financial or other benefit or avoid

an obligation;
(iii) any collusion, bid rigging or anti-competitive behavior to impair the
transparency, fairness and progress of the procurement process;

(iv) improper use of information shared between the procuring entity
and the bidders with an intent to gain unfair advantage in the
procurement process or for personal gain;

(y) any financial or business transactions between the bidder and any
officer or employee of the procuring entity, who are directly or
indirectly related to tender or execution process of contract;
(vi) any coercion including impairing or harming or threatening to do the
same, directly or indirectly, to any party or to its property to influence
the procurement process;
(vii) any obstruction of any investigation or audit of a procurement

process;
(viii) making false declaration or providing false information for

participation in,-
(a) tender process or to secure a contract;
(b) disclosure of conflict of interest;
(c) disclosure by the bidder of any previous
transgressions with any entity in India or any other country
during the last three years or of any debarment by any other
###### procuring entity.
(3) Without prejudice to the provisions of Chapter IV, in case of any breach of
the code of integrity by a bidder or prospective bidder, as the case may be,
the procuring entity after giving a reasonable opportunity of being heard,
may take appropriate measures including, -
(a) exclusion of the bidder from the procurement process;
(b) calling off of pre-contract negotiations and forfeiture or
encashment of bid security;


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THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11, 2017 1037

(c) forfeiture or encashment of any other security or bond relating to
the procurement;

(d) recovery of payments made by the procuring entity along with
interest thereon at bank rate;
(e) cancellation of the relevant contract and recovery of compensation for
loss inCUITed by the procuring entity;

(f) debarment of the bidder from participation in future procurements of
the procuring entity for a period not exceeding three years under
section 46.

12. Description of die subject matter of procurement-

( I) 1he description of the subject matter of procurement shall be set out in the
pre-qualification documents, bidder registration documents and the bidding
documents and shall, -

(a) be such as to meet the essential needs of the procuring entity;

(b) to the extent practicable-

(i) be objective, functional, generic and measurable;

(ii) set out the relevant technical, quality and
performance characteristics;

(iii) not indicate a requirement for a particular trade mark, trade
name or brand and incase it is essential to mention, the word "
or equivalent" shall be invariably used after the trade mark,
trade name or brand;

(c) be dra¥ro up in accordance with guidelines as may be prescribed.

(2) Where applicable, the technical specifications shall, to the extent practicable,
be based on national technical regulations or recognised national standards
or building codes, wherever such standards exist or in their absence, relevant
International Standards may be used.
13. Single envelop and two envelop bids.-
(1) State Government may lay _do¥m_ in rules and guidelines hereunder,
conditions and detailed procedures under which, a procuring entity may
choose to,-
(a) call for bids in which the technical, quality and performance
aspects, commercial terms and conditions and the financial aspects
including the price are contained in a single envelope; or
(b) if it is of the opinion that it is essential to evaluate the technical
aspects of a bid before considering its financial aspect, call for bids
in two envelopes, namely:-


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103 8 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017

(i) the techno-commercial bid containing the technical, quality
and performance aspects, commercial terms and conditions and
all other details and document.<:; sought in the tender, except the
price and relevant financial details; and
(ii) the financial bid containing financial aspects including the
pnce.

(2) In case the procuring entity calls for bids in terms of clause (b) of sub-
section (1 ), the techno-commercial bid shall be opened and evaluated first
and the financial bid of only those bids which have been found technically
acceptable shall be opened and evaluated.
**14.** **Criteria for evaluation.-**

(!) Save as otherwise provided in this Act or the rules or guidelines made
thereunder or in any other law for the time being in force, the evaluation
criteria shall relate to the subject matter of procurement and may include, -

(a) the price;
(b) the cost of operating, maintaining and repairing goods or works, the
time for delivery of goods, completion of works or provision of
services, the characteristics of the subject matter of procurement,
such as the functional characteristics of goods or works and the
environmental characteristics of the subject matter, the terms of
payment and of guarantees in respect of the subject matter of
procurement; and

(c) where relevant, the experience, reliability and professional
and technical competence of the bidder and of the personnel to be
involved in providing the subject matter of procurement.
(2) Where considered necessary, the procuring entity may also specify trials,
sample testing and other additional methods of technical evaluation of a bid:

Provided that the requirement of such trials, sample testing or
additional methods of evaluation shall be indicated in the bidding
documents and a record of such trials and testing shall be maintained in such
manner as may be prescribed.
(3) To the extent practicable, all non-price evaluation criteria shall be
objective and quantifiable.

( 4) The criteria for evaluation of bids, including whether the requirements
laid down in sub-section (2) of section 6 are applicable, shall be contained in
the bidding documents.
(5) Where applicable, the relative weights to be attached to each criterion shall
be specified in the bidding documents.
(6) No criteria or procedme, other than those mentioned in the bidding
documents shall be used by the procuring entity in evaluating bids.


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THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11, 2017 1039

###### 15. Price negotiations.- Save as otherwise provided in section 31 or section 35 or in such
circumstances and subject to such conditions as may be prescribed, no price
negotiation shall be held by a procuring entity with a bidder with respect to a bid
presented by him.
###### 16. Terms and conditions of contracts.-
(1) The terms and conditions of the procurement contracts entered into shall be
in accordance with the provisions of this Act, the applicable rules and the
conditions indicated in the bidding documents.
(2) The State Government may prescribe· standard terms and conditions of
contract which shall be incoxporated in the procurement contracts entered
into by procuring entities as applicable.
17. State Public Procurement Portal.-

(1) The State Government shall set up and maintain a State Public Procurement
Portal accessible to the public for posting matters relating to public
procurement.

(2) Each procuring entity shall cause the procurement related information to be
published as required under this Act or the rules and guidelines made
thereunder on the Portal referred to in sub-section (1 ).

(3) Without prejudice to the generality of sub-section (2), the State Public
Procurement Portal shall provide access to the folJowing information, for
such period of time as may be prescribed, in relation to procurement
governed by the provisions of this Act, namely:-

(a) pre-qualification documents, bidder registration documents,
bidding documents and any amendments, clarifications including
those purstiant to pre-bid conference, and corrigenda thereto;

(b) list of bidders that presented bids including during pre-
qualification or bidder registration, as the case may be;
(c) list of pre-qualified and registered bidders, as the case may be;
(d) list of bidders excluded under section 25, with reasons;
(e) decisions under sections 38 and 39;
(f) details of successful bids, their prices and bidders;
(g) particulars of bidders who have been debarred by the State
Government or a procuring entity together with the name of the
procuring entity, cause for the debarment action and the period of
debarment;
(h) any other information as may be prescribed.
18. Pre-qualification of bidden.-

(1) In appropriate technically complex; strategic and high value procurements as .
prescribed in rules and guidelines made hereunder a procuring entity may
engage in a pre-qualification process, with a view to identifying, prior to
inviting bids, the bidders that are qualified for any specified period of time.


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1040 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11, 2017

(2) For the purpose of sub section (1 ), a procuring entity may invite offers from
prospective bidders by giving wide publicity to the invitation to pre-qualify
and shall publish the particulars of the bidders that are qualified on the State
Public Procurement Portal.
(3) Where a procuring entity _has_ undertaken a pre- qualification process in
respect of any procurement, only such pre- qualified bidders shall be entitled
to continue in the procurement proceedings.
(4) The procuring entity shall decide who is pre-qualified in accordance with
section 7 and the criteria set out in the pre- qualification documents.
(5) Every pre-qualification process shall be carried out in such manner and in
accordance with such procedure as may be prescribed.
19. Registration of bidders.-
(1) With a view to establishing reliable sources for a subject matter of
procurement or a class of procurement, which may be commonly required
across procuring entities· or repeatedly required by a procuring entity, a
procuring entity may maintain a panel of registered bidders.

(2) For the purpose of sub-section (I), a procuring entity may invite offers from
prospective bidders by giving wide publicity to the invitation to register and
such registration shall be done in accordance with section 7, this section and
the criteria set out in the bidder registration documents.
(3) The procuring entities shall update the list of registered bidders by allowing
potential bidders to apply for registration on a continuous basis.

( 4) The State Government may prescribe the procedure and conditions for
registration of bidders and the period for which such registration shall be
valid. Such rules and guidelines may also cover the conditions and
procedure for removal of registered bidders from such a list of registered
bidders.
(5) Where a procuring entity does not register bidders in respect of a subject
matter of procurement, it may use the list of registered bidders of any other
procuring entity, if any.
(6) The results of the registration process shall be intimated to the bidders and
the list of registered bidders for the subject matter of procurement shall
be published in the State Public Procurement Portal.
20. Contents of bidding documents.-
( I) Subject to the rules as may be made in this behalf, the invitation to bid
shall contain-

(a) a brief description of subject matter of procurement;

(b) in case of procurement of,                     -

(i) goods, its specifications including the nature, quantity,
time and place of delivery;


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THE ASSAM GAZE'ITE, EXTRAORDINARY, APRIL 11, 2017 1041

(ii) works, the nature, completion time and location of the
works;
(iii) services, the nature of the services, the time and location for
providing service.
(c) any notice of limitation to participation of bidders in terms of

section 6;

(d) the manner, date and time for submission ofbids;
(e) any other information which is considered by the procuring entity
relevant for the purpose.

(2) The detailed bidding document shall contain the particulars included in the
invitation to bid, the criteria for evaluation of bids, the terms of the
procurement contract, and such further information as may be prescribed,
which may be necessary for the bidders to submit their bids.
(3) The State Government may prescribe standard conditions to be
included in bidding documents including its form.
(4) The State Government may prescribe model bidding documents for
different classes of procurements.

###### ll. Time frame for submission of bids.-
( 1) While fixing the last date by which bids are to be submitted by the bidders.
the procuring entity shall take into account-
( a) the need of the bidders for having a reasonable time to prepare and
submit their bids; and
(b) the time frame envisaged for procurement.
(2) Subject to the provisions of section 23, the maximum time as may be
allowed for submission of bids shall be the same for all bidders.

###### ll. ~bid clarlfiaations.-

(1) Any bidder may, in writing, seek clarifications from the procuring entity in
respect of the bidding documents.
(2) The period within which the bidders may seek clarifications under sub-
section (1) and the period within which the procuring entity shall respond to
such requests for clarifications shall be specified in the bidding docwnents.
(3) All requests for clarifications and responses thereto shall be intimated to all
bidders and where applicable, shall be published on the State Public
Procurement Portal.

( 4) A procwing entity may hold a pre-bid conference to clarify doubts of
potential bidders in respect of a particular procurement and the records of
such conference shall be intimated to all bidders and where applicable, shall
be published on the State Public Procurement Portal.


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1042 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017

###### 23. Changes to bidding documents.-

(1) In case any modification is made to the bidding documents or any
clarification is issued which materially affects the terms contained in
the bidding documents, the procuring .entity shall publish such modification
or clarification in the same manner as the publication of the initial bidding
documents.

(2) In case a clarification or modification is issued to the bidding documents, the
procuring entity may, prior to the last date for submission of bids, extend
such time limit in order to allow the bidders sufficient time to take into
account the clarification or modification, as the case may be, while
submitting their bids.

(3) Any bidder who has submitted his bid in response to the original invitation
shall have the opportunity to modify or re- submit it, as the case may be,
###### within the period of time originally allotted or such extended time as may be
allowed for submission of bids, when changes are made to the bidding
documents by the procuring entity:

Provided that the bid last submitted or the bid as modified by the
bidder shall be considered for evaluation.

###### 24. The procedure relating to submission, opening and evaluation of bids.- Subject to
the terms and conditions as may be laid down in the bidding documents, submission of
bids, opening and evaluation of bids, including constitution of committees for those
purposes shall be in accordance with the rules made under this act as may be
prescribed in the guidelines prepared there under.

###### 25. Exclusion of bids.-

(1) A procuring entity shall exclude a bid if, -

(a) the bidder is not qualified in terms of section 7;

(b) the bid materially departs from the requirements specified in the
bidding documents or it contains false information;


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THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11, 2017 1043

(c) the bidder submitting the bid, his agent or any one acting on his
behalf, gave or agreed to give, to any officer or employee of the
procuring entity or other governmental authority a gratification in
any form, or any other thing of value, so as to unduly influence the
procurement process;

(d) a bidder, in the opinion of the procuring entity, has a conflict of
interest materially affecting fair competition.

(2) A bid shall be excluded as soon as the cause for its exclusion is discovered.

(3) Every decision of a procuring entity to exclude a bid shall be for reasons to
be recorded in writing.

(4) Every decision of the procuring entity under sub-section(3) shall be,-

(a) communicated to the concerned bidder in writing;

(b) published on the State Public Procurement Portal.

###### 16. CaneeUadon of the procurement process.-

(1) A procuring entity may, for reasons to be recorded in writing, cancel the
process of procurement initiated by it, -

(a) at any time prior to the acceptance of the successful bid; or

(b) after the successful bid is accepted in accordance with sub-
sections (4) and (5).

(2) The procuring entity shall not open any bids or proposals after taking a
decision to cancel the procurement and shall return such unopened bids or
proposals.

(3) The decision of the procuring entity to cancel the procurement and reasons
for such decision shall be immediately communicated to all bidders that
participated in the procurement process.

(4) If the bidder whose bid has been accepted as successful fails to sign any

written procurement contract as required, or fails to provide any required
security for the performance of the contract, the procuring entity may cancel
the procurement process after forfeiting the bid security provided by the
bidder to the State Government.


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1044 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017

( 5) If a bidder is convicted of any offence under this Act, the procuring entity

may,-

(a) cancel the relevant procurement process if the bid of the convicted
bidder has been declared as successful but no procurement contract

has been entered into;

(b) rescind the relevant contract or forfeit the payment of all or
a part of the contract value if the procurement contract has been
entered into between the procuring entity and the convicted bidder.

'1.7. **Award of contract.-**

(1) Subject to the provisions of section 25 and sub-section (2) of section 6,
the procuring entity shall consider a bid as successful, -

(a) where price is the only award criterion, the bid with the lowest bid
price;

(b) where there are price and other award criteria, the most ·
advantageous bid ascertained on the basis of the criteria
and procedures for evaluating bids as specified in the bidding

documents;

(c) where there are no financial criteria, the most advantageous bid
ascertained on the basis of selected non-financial criteria
or other parameters for evaluating bids as specified in the
bidding documents.

(2) A bid shall be treated as successful in terms of sub- section (1), only after
the competent authority has approved the procurement in terms of that bid.

(3) As soon as the procuring entity, with the approval of the competent
authority, decides to accept a bid, it shall communicate that fact to all
participating bidders and also publish the decision on the State Public

Procurement Portal.

(4) While communicating acceptance of the bid, the procuring entity shall
advise the successful bidder to complete the requirements within a specified
time for furnishing any performance security in the form of Bank Guarantee
or any other Bank instrument and signing of tender agreement and if
necessary, conclude the procurement contract.


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THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11, 2017 1045

**B. Methods**

###### 28. Methods of proeurement.-

(1) Subject to the provisions of this Act and the rules made there under, a
###### procuring entity may procure a subject matter of procurement by means of any of the following methods, namely:-

(a) Open Competitive Bidding; or

(b) Limited Bidding; or

###### (c) Two stage Bidding; or

 (d) Single Source Procurement; or

 (e) Electronic Reverse Auction; or

(f) Request for Quotations; or

###### (g) Spot Purchase; or

(h) Competitive negotiations; or

(i) Rate Contract or Government E- Market (GeM)

(j) Framework agreement; or

###### (k) e-commerce; or

(1) community procurement for community driven schemes; or

###### (m) Swiss Challenge; or

{n) any other method of procurement notified by the State Government
###### satisfying the principles of procurement contained in this Act and which the State Government considers necessary in public interest.

(2) The State Government may, by notification, declare adoption of electronic
###### procurement as compulsory for different stages and types of procurement, and on such declaration, every requirement for written communication under this Act shall be deemed to have been satisfied if it were done by electronic means.

 (3) In procuring a subject matter of procurement, every procuring entity shall follow the detailed procedure in respect of the relevant method of procurement as may be prescribed in the Rules made under this Act.


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1046 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11, 2017

###### 29. Open competitive bidding.-
(1) Every procuring entity shall prefer the open competitive bidding as the most
preferred method of procurement to be followed.
(2) Open competitive bidding may also be followed in case of two stage bidding in
###### temis of section 32, electronic reverse auction in terms of section 33 and rate
contract in terms of section 36.
(3) The procuring entity may follow the pre-qualification procedure specified in
section 18 and invite bids from pre-qualified bidders only.
(4) Where the procuring entity chooses a method of procurement other than the
open competitive bidding, it shall record the reasons and circumstances
thereof.
(S) In case of an open competitive bidding, the procuring entity shall invite
bids by publishing an invitation to bid on the State Public Procurement
Portal and in at least one such other manner as may be prescribed.

###### 30. Limited bidding.-
(!) A procuring entity may choose to procure the subject matter of procurement
by the method of limited bidding, if·' -
(a) the subject matter of procurement can be supplied only by a
limited number of bidders; or
(b) the time and cost involved to examine and evaluate a large
number of bids may not be commensurate with the value of the
subject matter of procurement; or
(c) owing to an urgency brought about by unforeseen events,
the procuring entity is of the opinion that the subject matter of
procurement cannot be usefully obtained by adopting the method of
open competitive bidding; or
(d) procurement from a category of prospective bidders is necessary
in terms of sub-section (2) of section 6.
(2) Subject to the rules as may be made in this behalf, the procedure for
limited bidding shall include the following, namely:-
(a) the procuring entity shall issue an invitation to bid by writing
directly, and on the same day, to,-
(i) all the bidders who can supply the subject matter of
procurement in terms of clause (a) of sub-section (1 ); or

(ii) all the bidders who are . registered for the subject matter of
procurement with the procuring entity or with any · other
procuring entity, where procuring entity uses the list of
registered bidders of such other procuring entity in terms of sub-

section (5) of section 19; or


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THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11, 2017 1047

(iii) an adequate number of bidders who can supply the subject
matter of procurement selected in a non-discriminatory manner
to ensure effective competition, in case of clause (b) of sub~
section ( 1 );

(b) a procuring entity may allow all prospective bidders who fulfill
the qualification criteria laid down for the procurement, whether an
invitation to bid has been issued to such a bidder or not, to participate
in the bidding process.

31. **Sblgle souree proeurement.-**

(1) A procuring entity may choose to procure the subject matter of procurement
by the method of single source procurement, if, -
(a) the subject matter of procurement is available only from a
particular prospective bidder, or a particular prospective bidder has
exclusive rights in respect of the subject matter of procurement, such
that no reasonable alternative or substitute source exists, and the
use of any other procurement method would therefore not be
possible; or
(b) owing to a sudden unforeseen event, there is an extremely urgent
need for the subject matter of procurement, and engaging in any
other method of procurement would be impractical; or
(c) the procuring entity, having procured goods, equipment,
technology or services from a supplier, determines that
additional supplies or services must be procured from that supplier for
reasons of standardization or because of the need for compatibility
with existing goods, equipment, technology or services; or
(d) there is an existing contract for the subject matter of procurement
which can be extended for additional goods, works or services and
that the procuring entity is satisfied that no advantage would be
obtained by further competition, the prices are reasonable and
provisions for such extension exist in the original contract; or
(e) the procuring entity determines that the use of any other
method of procurement is not appropriate for the protection of
national security interests; or
(f) procurement from a particular prospective bidder is necessary
in terms of sub-section (2) of section 6; or
(g) subject matter is of artistic nature; or
(h) subject matter of procurement is of such nature as requires the
procuring entity to maintain confidentiality, like printing of
examination papers; or


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1048 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL II, 20I7

(i) for procurement particular breed of livestock or seeds or seedlings
available only in one source or when the required quantity is not
available with single source but available at different sources; or

##### · G) the item is available as per the rate contract of the Director General of
Supplies & Disposal's (DGS&D's).
(2) Subject to the rules as may be made in this behalf, the procedure for single
source procurement shall include the following, namely:-
( a) the procuring entity shall solicit a bid from a single prospective
bidder;
(b) the procuring entity may engage in negotiations in good faith with the
bidder;
(c) the procuring entity may procure the item as per the rate contract of
the Director General of Supplies & Disposal's (DGS&D's),
Government of India.
(3) The procurement entity shall publish all such procurement in the
procurement portal with details as may be prescribed in the Rules made
under this Act.
32. Two stage bidding.-

(1) A procuring entity may choose to procure the subject matter of
procurement by the method of two stage bidding, if, -
(a) it is not feasible for the procuring entity to formulate detailed
specifications or identify specific characteristics for the subject matter
of procurement, without receiving inputs regarding its technical
aspects from bidders; or
(b) the character of the subject matter of procurement is subject to such
rapid technological advances and market fluctuations to make
open competitive bidding unfeasible; or
(c) the procuring entity seeks to enter into a contract for the purpose of
research, experiment, study or development, except where the
contract includes the production of items in quantities sufficient to
establish their commercial viability or to recover research and
development costs; or
(d) the bidder is expected to carry out a detailed survey or
investigation and undertake a comprehensive asse~sment of risks,
costs and obligations associated with the particular procurement.

{2) Subject to the rules as may be made under this act, in this behalf, the
procedure for two stage bidding shall include the following, namely:-

(a) in the first stage of the bidding process, the procuring entity shall
invite bids containing the technical aspects and contractual terms and
conditions of the proposed procurement without a bid price;


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THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017 1049

(b) all first stage bids, which are otherwise eligible, shall be evaluated in
accordance with the procedure laid down in the rules through an
appropriate committee constituted by the procuring
entity;

(c) the committee may hold discussions with the bidders and if any
such discussion is held, equal opportunity shall be given to all bidders
to participate in the discussions;

(d) in revising. the relevant terms and conditions of the procurement, the
procuring entity shall not modify the fundamental nature of
the procurement itself, but may add, amend or delete any
specifications of the subject matter of procurement or criterion for
evaluation;
(e) not withstanding anything contained in sections 29 and 30, in the
second stage of the bidding process, the procuring entity shall
invite bids from all those bidders whose bids at the first stage
were not rejected, to present final bid with bid prices in response to
a revised set of terms and conditions of the procurement;
(f) any bidder, invited to hid but not in a position to supply the subject
matter of procurement due to changes in the specifications, may
withdraw from the bidding proceedings without forfeiting any bid
security that he may have been required to provide or being
penalized in any way, by declaring his intention to withdraw from the
procurement proceedings with adequate justification.
**33.** **Electronic reverse auction.-**

(1) A procuring entity may choose to procure a subject matter of procurement
by the method of electronic reverse auction, if, -

(a) it is feasible for the procuring entity to formulate a detailed
description of the subject matter of the procurement;
(b) there is a competitive market of bidders anticipated to be
qualified to participate in the electronic reverse auction, such that
effective competition is ensured; and
(c) the criteria to be used by the procuring entity in determining the
successful bid are quantifiable and can be expressed in monetary
terms.

(2) Subject to the rules as may be made in this behalf, the procedure for
electronic reverse auction shall include the following, namely:-
( a) the procuring entity shall invite bids to the electronic reverse
auction by causing an invitation to be published in accordance with
sub-section (5) of section 29 or issued in accordance with sub- section
(2) of section 30, as the case may be;


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1050 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017

(b) the invitation shall, in addition to the infonnation as set out in
section 20, include details relating to-
(i) access to and registration for the auction;
(ii) opening and closing of auction;
(iii) norms for conduct of the auction;
(iv) any other information as may be relevant to the method of
procurement.
(3) Electronic reverse auction may also be used for obtaining the best financial
bid in two stage bidding under section 32 and where the two part bid
system is followed in tenns of section 13.
**34.** **Request for quotations and spot purchase.-**
( I) A procuring entity may choose to procure a subject matter of procurement
###### of value below a monetary value as may be prescribed, in the rules
made under this act and Notified by the State Government by the method
of request for quotations in the following situations, namely:-
( a) procurement of readily available commercial-off- the-shelf goods that
are not specially produced to the particular description of the
procuring entity and for which there is an established market; or
(b) physical services that are not specially provided to the particular
description of the procuring entity and are readily available in the
market; or
(c) procurement of any goods or works or services which are urgently
required for maintenance or emergency repairs.
(2) Subject to the rules as may be made in this behalf, the procedure for request
for quotations shall include the following, namely:-

(a) a quotations in sealed envelopes shall be requested simultaneously
from as many potential bidders as practicable, subject to a minimum
###### of three, for submission within a given date and time:

Provided the potential bidders shall be genuine, having clear
individual established identity and not a sister concern of one another.
(b) each bidder shall be permitted to give only one quotation;
(c) the successful quotation shall be the lowest priced quotation
meeting the needs of the procuring entity as set out in the request for
quotations.
(3) A procuring entity may do a spot purchase of the subject matter of
procurement specified in sub-section ( 1) through a purchase committee
comprising three members within the procuring entity and in such cases
the purchase committee shall record a certificate to the effect that it is
satisfied that the goods or services are of requisite quality and are priced at
the prevailing market rate or commensurate to the market price.
(4) Nothing contained in sections 5 to 10 (both inclusive), sections 12 to 27
(both inclusive) and Chapter III shall apply to purchases made under this


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THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017 1051

**35A.** **Competitive negotiations.-**
( I) A procuring entity may choose to procure a subject matter of procurement
by the method of competitive negotiations, if,-
(a) owing to an urgency brought about by unforeseen events,
the procuring entity is of the opinion that the subject matter of
procurement cannot be usefully obtained by adopting the method of
open competitive bidding or any other method; or
(b) the subject matter of procurement involves livestock, cotton,
oilseeds or such other agricultural produces whose prices
fluctuate frequently and in the opinion of the procuring entity the
subject matter of procurement cannot be usefully obtained by
adopting the method of open competitive bidding or any other
method.
(2) Subject to the rules as may be made in this behalf, the procedure for
competitive negotiation shall include the following, namely:-

(a) purchase of the subject matter of procurement under this section
shall be made through a purchase committee within the procuring
entity and in such cases the purchase committee shall record a
certificate to the effect that it is satisfied that the subject matter of
procurement is of requisite quality and are priced at the prevailing
market rate;
(b) to ensure effective competition, an adequate number, not being
less than three, of potential bidders selected in a non-discriminatory
manner shall be included in procurement process;

(c) an equal opportunity shall be given to all bidders to participate in the
negotiations. (3) Nothing contained in sections 5 to 10 (both
inclusive), sections 12 to 27 (both inclusive) and Chapter III shall
apply to purchases made under this section.

**35 B.** **Swiss Challenge.-**
(1) A procuring entity may choose to procure the subject matter of procurement
by the method of Swiss Challenge, under such conditions, as may be
prescribed by the Government.
(2) The procedure for Swiss Challenge shall be such as may be prescribed by
the Government.
**36.** **Rate contract and Government E-Market (GeM).-**
( I) Rate Contract:
(a) A procuring entity may choose to engage in a rate contract procedure
in accordance with the rules as may be made in this behalf, under this
Act where it determines that, -


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1052 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017

(i) the need for the subject matter of procurement is expected to
arise on an indefinite or repeated basis during a given period of
time;

(ii) by virtue of the nature of the subject matter of procurement, the
need for it may arise during a given period of time.
(b) A procuring entity may award a rate contract on the basis of
open competitive bidding or by means of other procurement
methods in accordance with the provisions of this Act.
(c) Subject to the rules as may be made in this behalf, the procedure for
rate contract shall include the following, namely:-
(i) the manner in which rate contract is to be entered into
'
including selection of the method of bidding to be followed;
and

(ii) the manner in which a procurement contract has to be entered
into using rate contract procedure.

(2) Government E-Market (GeM):
(a) Director General Supplies and Disposal (DGS&D) hosts an online
Government e-Market Place (GeM) on pilot basis, for common use
goods and services. The electronic and online procurement process on
GeM is end to end from placement of supply order to payment to
suppliers.
(b) Government Procuring Entities (including State Government entities)
at their option may view, compare and directly purchase online, the
Products and services offered by various suppliers on GeM under
such conditions, as may be prescribed by the Government.
(c) The procedure and details of procurement thru the GeM shall be such
as may be prescribed by the Government.
37. Additional conditions for use of methods of procurement.- Notwithstanding
anything contained in sections 30 to 36 (both inclusive), the State Government may
through notification, add the conditions for the use of any of the methods of
procurement mentioned in clauses (b) to (i) of sub-section (1) of section 28, in a
manner that is consistent with the principles of transparency and accountability.

###### CHAPTER Ill Appeals

 38. Appeals.-

(1) Subject to section 40, if any bidder or prospective bidder is aggrieved that
any decision, action or omission of the procuring entity is in
contravention to the provisions of this Act or the rules or guidelines issued
thereunder, he may file an appeal to such officer of the procuring entity,


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THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11, 2017 1053

as may be designated by it for the purpose, within a period of ten days or
such other period as may be specified in the pre-qualification documents,
bidder registration documents or bidding documents, as the case may be,
from the date of such decision or action, omission, as the case may be,

clearly giving the specific ground or grounds on which he feels aggrieved:
Provided that after the declaration of a bidder as successful in terms
of section 27, the appeal may be filed only by a bidder who has
participated in procurement proceedings:

Provided further, that in case a procuring entity evaluates the
technical bid before the opening of the financial bid, an appeal related to the
matter of financial bid may be filed only by a bidder whose technical bid is

found to be acceptable.
(2) On receipt of an appeal under sub-section (1 ), the officer designated
under that sub-section shall, after affording a reasonable opportunity of
being heard to the parties, determine as to whether or not the procuring
entity has complied with the provisions of this Act, the rules and
guidelines made there under and the terms of the pre-qualification
documents, bidder registration documents or bidding documents, as the
case may be, and pass an order accordingly which shall, subject to the order
passed under sub-section (5), be final and binding on the parties to the

appeal.
(3) The officer to whom an appeal is filed under sub- section (1) shall deal with
the appeal as expeditiously as possible and shall endeavor to dispose it of
within thirty days from the date of filing of the appeal.
( 4) If the officer designated under sub-section ( 1) fails to dispose of the appeal
filed under that sub-section within the period specified in sub-section (3),
or if the bidder or prospective bidder or the procuring entity is aggrieved
by the order passed under sub- section (2), the bidder or prospective bidder
or the procuring entity, as the case may be, may file a second appeal to an
officer or authority designated by the State Government in this behalf within
fifteen days from the expiry of the period specified in sub-section (3) or of
the date of receipt of the order passed under sub-section (2), as the case may

be.
(5) On receipt of an appeal under sub-section (4), the officer or authority
designated under that sub-section shall, after affording a reasonable
opportunity of being heard to the parties, determine as to whether or not the
procuring entity has complied with the provisions of this Act, the rules
and guidelines made there under and the terms of the pre-qualification
docwnents; bidder registration documents or bidding documents, as the case
may be, and pass an order accordingly which shall be final and binding on

the parties to the appeal..


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1054 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017

(6) The officer or authority to which an appeal is filed under sub-section (4)
shall deal with the appeal as expeditiously as possible and shall endeavor
to dispose it of within thirty days from the date of filing of the appeal:

Provided that if the officer or authority to which an appeal is filed
under sub-section ( 4) is unable to dispose of the appeal within the aforesaid
period, he shall record reason for the same.
(7) The officer or authority to which an appeal may be filed under sub-section
(1) or (4) shall be indicated in the pre- qualification documents, bidder
registration documents or bidding documents, as the case may be.
(8) Every appeal under sub-sections (1) and (4) shall be filed in such form
and manner and shall be accompanied by such fee as may be prescribed.

(9) While hearing an appeal under this section, the officer or authority
concerned shall follow such rules of procedure as may be prescribed.

(10) No information which would impair the protection of essential security
interests of India, or impede the enforcement of law or fair competition, or
prejudice the legitimate commercial interests of the bidder or the procuring
entity, shall be disclosed in a proceeding under this section.
###### 39. Stay of procurement proceedings.- While hearing of an appeal under section 38,
the officer or authority hearing the appeal may, on an application made in this behalf
and after affording a reasonable opportunity of hearing to the parties concerned, stay
the procurement proceedings pending disposal of the appeal, if he, or it, is satisfied
that failure to do so is likely to lead to miscarriage of justice.

###### 40. Appeal not to lie in certain cases.- No appeal under section 38 shall lie against any
decision of the procuring entity relating to the following matters, namely:-

(a) determination of need of procurement in terms of section 5;

(b) provisions limiting participation of bidders in the bid process in terms of
the provisions of section 6;

(c) the decision of whether or not to enter into negotiations in terms
###### of section 15;

(d) cancellation of a procurement process in terms of section 26;

(e) applicability of the provisions of confidentiality under section 49.

###### CHAPTER IV

_Offences and Penalties_

###### 41. Punishment for taking gratification or valuable thing in respect of public procurement.- Whoever, being an officer or employee of the procuring entity
acting in connection with any procurement process, accepts or obtains or agrees
to accept or attempts to obtain from any person, for himself or for any other person,
any gratification other than legal remuneration or any valuable thing without
consideration or for a consideration which· he knows to be inadequate, in connection


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THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11, 2017 1055

with such public procurement, as a motive or reward for doing or forbearing to do any
official act or for showing or forbearing to show, in the exercise of his official
functions, favour or disfavour to any person or for rendering or attempting to render
any service or disservice to any person, shall be punishable with imprisonment which
shall be not less than six months but which may extend to five years and shall also be
liable to fine.

42. Interference with procurement process.-

(1) Whoever)-

(a) interferes with or influences any procurement process with the

intention of securing any wrongful gain or undue advantage for any

    - prospective bidder or bidder; or

(b) interferes with the procurement process with the intention of causing

    - any unfair disadvantage for any prospective bidder or bidder; or

(c) engages in any action or lobbying, directly or indirectly, with the

objective of unduly restricting fair competition; or
(d) intentionally influences any procuring entity or any officer or
employee thereof or willfully or fraudulently makes any assertion or
representation that would restrict or constrain fair competition in any
procurement process; or
(e) engages a former officer or employee of a procuring entity as
an employee, director, consultant, adviser or otherwise, within a

period of one year after such former officer or employee was associated
with a procurement in which the employer had an interest; or

(f) engages in any form of bid-rigging, collusive bidding or
anticompetitive behavior in the procurement process; or
(g) intentionally breaches confidentiality referred to in section 49 for any
undue gain, shall be punished with imprisonment for a term which may

extend to five years and shall also be liable to fine which may extend to
fifty lakh rupees or ten per cent of the assessed value of procurement,
whichever is less.

(2) A bidder who, -

(a) withdraws from the procurement process after opening of financial
bids; or
(b) withdraws from the procurement process after being declared the
successful bidder; or
(c) fails to enter into procurement contract after being declared the
successful bidder; or


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1056 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11, 2017

(d) fails to provide performance security or any other document or security
required in terms of the bidding documents after being declared
the successful bidder, without valid grounds, shall, in addition to
the recourse available in the bidding documents or the
contract, be punished with fine which may extend to fifty lakh
rupees or ten per cent of the assessed value of procurement, whichever
is less.

43. Vexatious appeals or complaints.- Whoever intentionally files any vexatious,

frivolous or malicious appeal or complaint under this Act, with the intention of

                                                                                   -

delaying or defeating any procurement or causing loss to any procuring entity
or any other bidder, shall be punished with fine which may extend to twenty lakh
rupees or five per cent of the value of procurement, whichever is less.

44. Offences by companies.-

(1) Where an offence under this Act has been committed by a company, every
person who at the time the offence was committed was in charge of and was
responsible to the company for the conduct of the business of the company,
as well as the company, shall be deemed to be guilty of having committed the
offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any
such person liable for any punishment if he proves that the offence was
committed without his knowledge or that he had exercised all due diligence
to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1 ), where an offence
under this Act has been committed by a company and it is proved that the
offence has been committed with the consent or connivance of or is
attributable to any neglect on the part of any director, manager, secretary
or other officer of the company, such director, manager, secretary or other
officer shall also be deemed to be guilty of having committed such offence
and shall be liable to be proceeded against and punished accordingly.

Explanation- For the purpose of this section, -
(i) "company" means a body corporate and includes a limited liability
partnership, firm, registered society or co- operative society, trust or other
association of individuals; and
(ii) "director" in relation to a limited liability partnership or firm, means a

~er in the firm.

45. Abetment of certain offences.- Whoever abets an offence punishable under this Act,
whether or not that offence is committed in consequence of that abetment, shall be
punished with the punishment provided for the offence.


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THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11, 2017 1057

###### 46. Debarment from bidding.·
(1) A bidder shall be debarred by the State Government if he has been convicted

of an offence -

Ceotral Act

(a) under the Prevention of Corruption Act, 1988 ; or No.49 of

1988

(b) under the Indian Penal Code, 1860 or any other law for the time Central Act

No. 4S of

being in force, for causing any loss of life or property or causing a 1860
threat to public health as part of execution of a public

procurement contract.

     - (2) A bidder debarred under sub-section (1) shall not be eligible to participate in

a procurement process of any procuring entity for a period not exceeding
three years commencing from the date on which he was debarred.
(3) If a procuring entity finds that a bidder has breached the code of integrity
prescribed in terms of section 11, it may debar the bidder for a period not
exceeding three years.
(4) Where the entire bid security or the entire performance security or any
substitute thereof, as the case may be, of a bidder has been forfeited by a
procuring entity in respect of any procurement process or procurement
contract, the bidder may be debarred from participating in any procurement
process undertaken by the procuring entity for a period not exceeding three
years.
(5) The State Government or a procuring entity, as the case may be, shall not
debar a bidder under this section unless such bidder has been given a
reasonable opportunity of being heard.

47. Previous sanction necessary for prosecution.- No court shall take cognizance of
an offence punishable under this Act, alleged to have been committed by a public
servant during the course of his employment, except with the previous sanction,-
(a) in case of a person who is employed in connection with the affairs of the State
and is not removable from his office save by or with the sanction of the State
Government, of that Government.
(b) in the case of any other person, of the authority competent to remove him
from his office.


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1058 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017

###### CHAPTERV
_Miscellaneous_

48. Requirement of professional standards, training and certification.- The State
Government may prescribe professional standards to be achieved by officials dealing
with procurement matters under this Act and specify suitable training and
certification requirements for the same.
49. Confidentiality.-

(1) Notwithstanding anything contained in this Act but subject to the provisions of
any other law for the time being in force providing for disclosure of
information, a procuring entity shall not disclose any information if such
disclosure, in its opinion, is likely to -
(a) impede enforcement of any law;

..

(b) affect the security or strategic interests of India;

(c) affect the intellectual property rights or legitimate commercial
interests of bidders;

(d) affect the legitimate commercial interests of the procuring entity in
situations that may include when the procurement relates to a project
in which the procuring entity is to make a competitive bid, or
the intellectual property rights of the procuring entity.
(2) Except as otherwise provided in this Act, a procuring entity shall treat all
communications with bidders related to the procurement process in such
manner as to avoid their disclosure to competing bidders or to any other person
not authorized to have access to such information.

(3) The procuring entity may impose on bidders and sub- contractors, if there are
any for fulfilling the terms of the procurement contract, conditions aimed at
protecting information, the disclosure of which violates sub-section (I).

###### 50. State Procurement Facilitation Cell.-

(1) The State Government shall establish a State Procurement Facilitation Cell
which shall be headed by an officer not below the rank of a Commissioner.
(2) The State Procurement Facilitation Cell shall discharge the following
functions, namely:

(a) to maintain and update the State Public Procurement Portal set up
under section 17;
(b) to arrange for training and certification specified in terms of section
48;

(c) to recommend to the State Government measures for effective
implementation of the provisions of this Act;
(d) to provide guidance, consistent with the provisions of this Act and
the rules and guidelines made there under, to the procuring
entities with respect to the matter relating to public procurement;


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THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11, 2017 1059

(e) to study different methods of public procurement and prepare and
recommend standard bidding documents, pre-qualification documents
or bidder registration documents;
(f) subject to the provisions of sub-section (2) of section 28, encourage
procuring entities to adopt electronic procurement; and
(g) to discharge such other functions as may be assigned to it by the State
Government consistent with the provisions of this Act and the rules
and guidelines made there under.
(3) The State Procurement Facilitation Cell shall have the power to require a
procuring entity or any other person by notice in writing to furnish such
information as may be necessary for perfonning its functions under this Act.

51. Protection of action taken in good faith.-

(1) Every officer or employee of a procuring entity or any member of a committee
constituted under this Act, acting under or in pursuance of the provisions of
this Act or rules, guidelines, orders or notifications made there unde~ shall
be deemed to be a public servant within the meaning of section 21 of the
Indian Penal Code, 1860. Central Act

No. 45 of

(2) No suit, prosecution or other legal proceedings shall lie against any officer or 1860

employee or any other person acting in the discharge of any function under
this Act for any Joss or damage caused or likely to be caused by any act which
is done or intended to be done in good faith and in pursuance of the provisions
of this Act.

(3) For the purposes of this section, 'good faith' shall have the same meaning as is

###### assigned to it under section 52 of the Indian Penal Code, 1860. Cen:ral

Act No.45
of 1860

52. Application of other laws.- The provisions of this Act shall be in addition to, and

    - not in derogation of the provisions of any other law for the time being in force .

53. Recovery of sums payable under the Act.- Any sum payable by any person under

this Act shall be recoverable as arrears ofland revenue.
54. Service of notice, documents and orders.-
(1) For the purposes of this Act a notice, document or order shall be deemed to
be served,-
(a) on any individual by , -
(i) delivering it to the person personally~ or
(ii) leaving it at, or sending it by post to, the address of the
place of residence or business of the person last known;
(b) on a body corporate by leaving it at, or sending it by post to, the
registered office of the body corporate.
(2) For the purposes of this Act, when the procedure laid down by sub-section
(1) is followed, service shall be deemed to be effected by properly
addressing, preparing and posting the document, notice or order, as the case
maybe.


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1060 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017

###### 55. Power of State Government to make rules.-
( I) The State Government may, by notification, make rules for carrying out the
provisions of this Act and different sets of rules may be made for different
classes or categories of procurements or procuring entities.

(2) In particular, and without prejudice to the generality of the foregoing power,
such rules may provide for all or any of the following matters, namely:-
(i) procurements covered under sub-section ( 4) of section 3;
(ii) matters to be decided while determining need for procurement
under section 5;
(iii) circumstances in which participation of bidders may be limited under
section 6;

(iv) identification and treatment of conflict of interest situations under
section 7;

(v) additional qualifications to be fulfilled by bidders w1der clause (f)
of sub-section (1) ofsection 7;

(vi) time frame for various stages of the process of procurement under
section 9;
(vii) infonnation or record of procurement proceedings required to be

maintained under clause (i) of sub- section ( 1) of section 1 0;

(viii) code of integrity under section 11;
(ix) guidelines for drawing up the description of the subject matter of
procurement under section 12;
(x) evaluation criteria under sub-section (1) of section 14;
(xi) maintenance of records of trials and testing under sub-section (2) of
section 14;
(xii) provisions relating to price negotiations under section 15;
(xiii) terms and conditions of procurement contracts under section 16;
(xiv) information to be provided on the State Public Procurement

Portal under section 17;

(xv) procedure for pre-qualification under section 18; (xvi) procedure and

conditions for registration of bidders under section 19;

(xvi) provisions relating to content of bidding documents under section 20;

(xvii) standard conditions of bidding documents including its fonn under

sub-section (3) of section 20;

(xviii) procedure for submission, opening and evaluation of bids, including

constitution of committees for those purposes under section 24;

(xix) procedure in respect of various methods of procurement under

section 28;

(xx) manner of publication of bid under sub-section (5) of section 29;
(xxi) provisions relating fo monetary value for procurement through

request for quotations and spot purchase under section 34;


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THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017 1061

(xxii) form, manner and fee for appeals under section 38; (xxiv) procedure
to be followed while hearing appeal under section 38;

(xxiii) professional standards, training and certification for officials dealing
with procurement matters under section 48;

(xxiv) prov1s1ons relating to bid securities, performance securities,
inspection of works, goods and services, modification and withdrawal
of bids, and contract management;

(xxv) any other matter which is required to be prescribed by the State

Government for carrying out the provisions of this Act.

###### .. (3) All rules made under this section shall be laid, as soon as may be after

they are so made, before the House of the State Legislature, while it is in

###### • session, for a period of not less than fourteen days, which may comprise in

one session or in two successive sessions and, if before the expiry of the
session in which they are so laid or of the session immediately following, the
House of the State Legislature makes any modification in any of such rules or
resolves that any such rule should not be made, such rule shall thereafter have
effect only in such modified fonn or be of no effect, as the case may be, so
however, that any modification or annulment shall be without prejudice to the
validity of anything previously done there under.
**56.** **Power** **to** **issue guidelines.-**

(1) Subject to the provisions of this Act and the rules made there under, a ·

procuring entity may issue guidelines giving details of procedure or general
forms or standard specifications and manuals required for giving effect to the

provisions of this Act and the rules made there under.
(2) All guidelines issued by a procuring entity under this section shall be laid, as

    - soon as may be after they are so made, before the House of the State

Legislature, while it is in session, for a period of not less than fourteen days,
which may comprise in one session or in two successive sessions and, if
before the expiry of the session in which they are so laid or of the session
immediately following, the House of the State Legislature makes any
modification in any of such guidelines or resolves that any such guideline
should not be made, such guideline shall thereafter have effect only in such
modified form or be of no effect, as the case may be, so however, that any
modification or annulment shall be without prejudice to the validity of
anything previously done there under.
**57.** **Power to** **remove difficulties.-**
(1) If any difficulty arises in giving effect to the provisions of this Act, the State
Government may, by order published in the Official Gazette, make such
provisions not inconsistent with the provisions of this Act, as may appear to it
to be necessary for removing the difficulty:


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1062 THE ASSAM GAZETTE, EXTRAORDINARY, APRIL 11 , 2017

Provided that no order shall be made under this section after the
expiry of a period of two years from the commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it
is made, before the House of the State Legislature.
58. **Power to exempt.-**

(1) If the State Government is satisfied that it is necessary in public interest so to
do, it may, by order published in the Official Gazette and for reasons to be
recorded in such order, exempt any procurement or a class or category of
procurements or a class or category of procuring entities from the application
of all or any of the provisions of this Act.

(2) Every order made under sub-section (1) shall, as soon as may be after it is
made, be laid before the House of the State Legislature.

59.           -

**Savings.- All rules, regulations, orders, notifications, departmental codes, manuals,** "
bye-laws, official memoranda or circulars relating to procurement of goods, services or
works provided for in this Act, which are in force on the date of commencement of this
Act, shall continue to be in force to the extent they are consistent with the provisions of
this Act, until they are repealed or superseded by any rule, guideline, notification or
order, as the case may be, made or issued under this Act.

S.M. BUZAR BARUAH,
Commissioner & Secretary to the Government of Assam,
Legislative Department, Dispur.                                 -

Guwahati :- Printed and Published by the Dy. Director (P & S), Directorate of Printing & Stationery, Assam, Guwahati-21.
Ex. Gazette No. 281                              - 200 + 10 - 11                              - 04 - 2017.


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