Q&A: the essentials of public tender procedures in Singapore

The procurement procedures

Does the relevant legislation require compliance with certain fundamental principles when designing and carrying out a contract award procedure? (For example, equal treatment, transparency and non-discrimination)?

As part of its published policy on government procurement, the Singapore government’s procurement framework is based on the following principles:

• transparency: the Government Procurement Regulations 2014 (GPR) provides that a contracting authority shall conduct procurement in a transparent and impartial manner that avoids conflicts of interest and prevents corrupt practices;
• open and fair competition: the GPR provides that a contracting authority is required to treat all tenders and ensure fairness and impartiality of the procurement process. A contracting authority is also prohibited from providing a bidder with any information regarding a procurement where doing so might prejudice fair competition between bidders. Principles of national treatment and non-discrimination are also applicable in various circumstances; and
• value for money: the GPR provides that the evaluation criteria set out in the notice of intended procurement or tender documentation may include price and other cost factors, quality, technical merit, environmental characteristics and terms of delivery.

For further details, refer to the GeBiz Procurement Guide for Suppliers. 

Does the relevant legislation or case law require that a contracting authority is independent and impartial?

Yes. There have been various cases in Singapore where public officials have been prosecuted for alleged improprieties in the procurement process. The requirement for public servants to maintain propriety and high standards of accountability and transparency are strenuously policed by the authorities and in the courts. The Singapore government’s Instruction Manual sets out various stages in the procurement process with enunciated ‘rules’ for each stage. Non-compliance with any of these rules may trigger a formal investigation.

Does the legislation address expressly the issue of conflicts of interest? (A conflict of interest can arise in relation to anyone taking decisions for and on behalf of a contracting authority in the preparation, or in the conduct, of a tender procedure, as a result of personal relationships or commercial interests, for example. Briefly discuss specific legislation dealing with such conflicts, or relevant case law.)

In addition to the express requirement under the GPR that contracting authorities conduct procurements in a manner that avoids conflicts of interest, contracting authorities are also required to award contracts to bidders that have been determined to be capable of complying with the terms and conditions of the contract and that (based on evaluation criteria set out) have submitted the lowest price, where price is the sole criterion, or the most advantageous tender, where price is not the sole criterion.

A contracting authority shall also not use options, cancel a procurement or modify awarded contracts in a manner that circumvents the obligations under the GPR.

Additionally, it is an offence under the Prevention of Corruption Act 1960 to (1) solicit or receive, or agree to receive for oneself, or for any other person, or (2) give, promise or offer to any person whether for the benefit of that person or of another person, any gratification as an inducement to or reward for any public official doing or forbearing to do anything with respect of any matter in which the contracting authority is concerned. This also covers the activities of procurement.

Are there any restrictions on the ability of a bidder to be involved in the preparation of a contract award procedure? (If, for example, a potential bidder is involved in the drafting of tender documents or discussing possible specifications, is the bidder’s participation in the bid prohibited? If so, is the prohibition absolute or qualified?)

This is not expressly dealt with in the Government Procurement Act (Cap 120) (the Act), the Government Procurement (Application) Order, the Government Procurement Regulations 2014 or the Government Procurement (Challenge Proceedings) Regulations (collectively, the Procurement Legislation). In light of the provisions and policies relating to conflict of interest and fairness and impartiality of the procurement process, it is not uncommon for this to be regulated (or limited) by the terms of the tender documentation.

Which procurement procedure is primarily used for the award of regulated contracts?

As a general requirement, the GPR requires that a procurement subject to the Act is to be conducted via open tendering (a procurement method whereby all interested bidders may submit a tender) or selective tendering (a procurement method whereby only qualified bidders are invited to submit a tender). Open tendering usually involves tender notices being posted openly on the Government Electronic Business portal for interested parties to respond to while selective tendering usually involves two stages: a shortlisting or pre-qualification stage, and a subsequent tendering stage that the shortlisted applicants are invited to participate in.

A contracting authority may, however, use limited tendering (a procurement method where the contracting authority contacts a bidder or bidders of its choice ‘by invitation’ to submit a tender) for procurement in certain exceptional circumstances (eg, when open tendering or selective tendering was used but no tender was received, or when the goods or services to be procured can only be supplied by a particular bidder). The GPR prohibits a contracting authority from carrying out limited tendering with a view to avoiding competition or protecting bidders established in Singapore, or otherwise in a manner that is discriminatory against any applicable bidder.

Does the relevant legislation specify the criteria that must be used for the evaluation of submitted tenders? (What are the legal limits for a contracting authority when determining the award criteria?)

Contracting authorities will assess tenders holistically and take a ‘value for money’ approach.

The GPR provides that the evaluation criteria set out in the tender documentation may include price and other cost factors, quality, technical merit, environmental characteristics and terms of delivery.

A value for money approach does not automatically entitle the lowest bidder to be awarded.

It is not uncommon for tender documentation to expressly state that the relevant contracting authority is not required to award the relevant contract to the lowest-priced bid.