Regulations on the Procurement of Contracts by the Bank of the Republic of Burundi

Bank of the Republic of Burundi REGULATIONS ON THE PROCUREMENT OF CONTRACTS OF THE BANK OF THE REPUBLIC OF BURUNDI

Having reviewed Law 1/34 of December 2, 2008, on the Statutes of the Bank of the Republic of Burundi, particularly Article 1;

Having reviewed Law No. 1/01 of February 4, 2008, on the Public Procurement Code of Burundi;

Having reviewed Service Order No. 4 of February 3, 2005, on the creation of an Adjudication Committee of the Bank of the Republic of Burundi;

The Bank of the Republic of Burundi hereby enacts these regulations governing the procurement of its contracts, as adopted by the General Council in its meeting of October 15, 2009, and approved by the Minister responsible for Finance.

CHAPTER I: GENERAL PRINCIPLES

I. DEFINITIONS

Article 1: Works Contracts

A works contract is understood to be a contract for consideration concluded between a contractor and the Bank, the object of which is:

• either the execution, or jointly the design and execution, of works relating to the construction of a new structure, or the renovation or rehabilitation of an existing structure;
• or to have a structure meeting the Bank's specified needs carried out by any means whatsoever.

Article 2: Supply of Goods Contracts

A supply of goods contract is a contract for consideration concluded between a supplier and the Bank, the object of which is the acquisition of consumables and other goods, by purchase or enterprise contract. This contract may include, as an accessory, installation and commissioning works.

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Article 3: Services Contracts

A services contract is defined as a contract for consideration concluded between a service provider and the Bank, the object of which is intellectual services such as studies, audits, consulting, supervision of contract execution, etc. The term extends to services such as cleaning and maintenance of structures or equipment, insurance, security, etc.

Article 4: Open Tender

A tender is said to be open when any qualified candidate can submit an offer, and the notice of tender is subject to customary publicity. For the purposes of these regulations, qualified candidates are those who are not in any of the ineligibility situations defined in Article 8 below and who also meet the administrative conditions required by the tender documents.

Article 5: Restricted Consultation

A contract is awarded through restricted consultation when the Bank consults several contractors, suppliers, or service providers of its choice, or whose list is established following a request for expression of interest, and negotiates the terms of the contract with one or more of them.

Article 6: Tender with Competition

A tender may take the form of a competition when technical, aesthetic, or financial reasons justify particular research. The competition concerns the design of a work or a project in the field of architecture.

Article 7: Negotiated Contract or Negotiated Procedure

A contract is said to be negotiated or awarded by negotiated procedure when it is concluded without a call for tenders.

Article 8: Eligibility for Bank Contracts

Natural or legal persons may not apply for the Bank's contracts if: a) they have not paid duties, taxes, levies, contributions, fees, or charges of any kind whatsoever, or, failing that, cannot provide proof from the Administration attesting to their compliance with their tax and social obligations;

3 b) they have not made the declarations required by current laws and regulations; c) they are in judicial liquidation or bankruptcy; d) they are subject to any of the prohibitions or forfeitures provided for by texts, particularly the penal code, the general tax code, and the public procurement code; e) they are associated with or related to any person who contributed to the preparation of the tender documents and/or the members of the committee, or have a presumed interest as defined in Article 16 below. f) in which the Bank has financial interests of any kind whatsoever; g) they have an ongoing dispute with the Bank. Nevertheless, the General Council may grant an exception if the Bank's interests so justify; h) they are part of the Bank's staff, subject to Article 61 of these regulations.

II. SCOPE OF APPLICATION

Article 9: The provisions of these regulations apply to works contracts, supply contracts, service contracts, and sales carried out by the Bank of the Republic of Burundi. They do not apply to foreign exchange, monetary, and financial market contracts, which are governed by specific regulations.

III. PROVISIONAL PROCUREMENT PLAN

Article 10: Based on its activity plan, the Bank establishes its annual procurement plan for each fiscal year. This plan is adopted by the Bank's Management Committee and may be revised according to needs and budget.

IV. COMPOSITION, COMPETENCIES, AND POWERS OF THE PROCUREMENT COMMITTEE

Article 11: The authority for decisions relating to the award and execution of contracts is distributed as follows, based on the value of the contracts:

• Intendance Service: Contracts with a value less than or equal to BIF 5,000,000;
• Advisors' Office: Contracts with a value of more than BIF 5,000,000 and less than or equal to BIF 20,000,000;
• Management Committee: Contracts with a value of more than BIF 20,000,000.

Article 12: The procurement committee is composed as follows, according to the thresholds defined in Article 11 above:

4 1° Contracts with a value less than or equal to BIF 5,000,000:

• The Head of the Intendance Service or their Deputy, Chairman;
• Three agents from the Intendance responsible for the contract, one of whom is from the field concerned by the contract;
• A representative from the concerned service;
• A representative from the Accounting Service.

2° Contracts with a value of more than BIF 5,000,000 and less than or equal to BIF 20,000,000:

• A member of the Advisors' Office, Chairman;
• The Head of the Intendance Service or their Deputy;
• The Intendance agent concerned by the contract;
• A representative from the concerned service;
• A representative from the Accounting Service;
• A representative from the Legal Service.

3° Contracts with a value of more than BIF 20,000,000

• A member of the Management Committee, Chairman;
• A member of the Advisors' Office;
• The Head of the Intendance Service or their Deputy;
• The Intendance agent concerned by the contract;
• A representative from the concerned service;
• A representative from the Accounting Service;
• A representative from the Legal Service.

Article 13: The Committee may enlist any person, even one external to the Bank, for their technical expertise. This person acts in an advisory capacity.

Article 14: The Intendance Service provides secretarial support for the various committees.

Article 15: For each contract, a subcommittee designated for this purpose by the committee defined in Article 11 above handles the award tasks and reports to the competent body for decision. However, for contracts that, according to the thresholds defined in Article 12 above, do not fall under its direct intervention in the award process, the Management Committee provides a non-objection.

Article 16: Any member of the procurement committee is required, under penalty of administrative sanctions without prejudice to other sanctions provided by law, to refrain from intervening in the award of a contract in which they have an interest, either personally or through an intermediary. The existence of this interest is presumed:

1. Whenever there is kinship or affinity, in the direct line up to the second degree, and in the collateral line up to the fourth degree, between the member and the bidder or any person acting on behalf of the bidder in a management or administrative capacity.
2. When the member is, personally or through an intermediary, the owner, co-owner, or partner of one of the bidding companies, or exercises, in law or in fact, personally or through an intermediary, a management or administrative power.

V. CONTROL OF CONTRACT AWARD

Article 17: For all contracts, the Internal Audit Service and the external auditor conduct ex-post control at any time.

VI. APPEALS

Article 18: Any bidder who claims to be harmed by a decision relating to the award and/or execution of a contract has an administrative appeal before the Directorate for contracts with a value less than or equal to BIF 20,000,000 and before the General Council for contracts with a value greater than BIF 20,000,000. A copy of the appeal is reserved for the body that awarded the contract. The filing of an appeal suspends the contract award procedure for a maximum period of 15 calendar days, after which the procedure can no longer be suspended, whether or not the body seized has rendered its decision. This appeal must be filed within five working days from the written notification of the contract award decision. In case of failure of the administrative appeal or amicable procedure, or in case of no response from the Bank within 45 calendar days following the filing of the appeal, disputes may be submitted to the competent courts. Appeals before the courts do not have a suspensive effect on the contract.

6 CHAPTER II: WORKS AND SUPPLY CONTRACTS FOR GOODS AND SERVICES

I. AWARD METHODS

Article 19: Bank contracts are, in principle, awarded through open tender.

Article 20: Notwithstanding Article 19 above, contracts may be awarded through restricted consultation, negotiated procedure, or direct negotiation in the cases provided for in Articles 21 and 22 below. In such cases, for any contract with a value of BIF 50,000,000 or more, the General Council is informed.

Article 21: A tender is said to be restricted when only candidates whom the Bank has decided to consult can submit offers. The number of candidates admitted to bid must ensure real competition. The procedure then continues as in the case of open tender. Restricted tender or restricted consultation procedures may only be used when the goods, works, or services, due to their specialized nature, are available only from a limited number of suppliers, contractors, or service providers. In this case, all known candidates must be invited. For intellectual services contracts, the restricted consultation list is established following a call for expressions of interest through an open call for applications.

Article 22: Negotiated procedure or direct negotiation without advertising formalities may be used in the following cases: 1° Regardless of the type of contract: a) The contract concerns works, supplies, or services deemed secret by the Bank or whose execution must be accompanied by special security measures, or when the protection of essential security interests so requires; b) To the strictly necessary extent, urgency resulting from unforeseeable events does not allow for compliance with the deadlines required by other procedures. c) Only irregular offers were submitted following an adjudication or tender, or only unacceptable prices were proposed, or when no offer was submitted, provided that:

• The deadlines for a new open or restricted tender are no longer compatible with the project's interests;
• The technical and/or administrative conditions of the contract are not the cause of the tender's failure;
• The initial conditions of the contract are not modified. d) The works, supplies, or services can only be entrusted to a specific contractor, supplier, or service provider due to their technical specificity, protection of exclusive rights, or in case of monopoly. 2° In the case of complementary contracts to an already executed contract as defined below in paragraphs a) and b), and provided that:
• no other contractor, supplier, or service provider can guarantee a solution meeting the technical, administrative, or economic requirements specified in the said paragraphs;
• the cumulative amount of complementary contracts does not exceed 20% of the principal amount. a) Works or services contracts: a.1. Complementary works or services not included in the initially awarded project or the first concluded contract have become necessary due to an unforeseen circumstance for the execution of the work or service as described, provided that the award is made to the contractor who executed the said work or service.
• When these works or services cannot be technically or economically separated from the main contract without major drawbacks;
• When these works or services, although separable from the execution of the main contract, are strictly necessary for its completion. a.2. New works or services consisting of the repetition of similar works or services are awarded to the contractor of a first contract, provided that these works or services conform to a basic project and that this project was the subject of a first contract awarded through open or restricted tender. b) In the case of a supply of goods contract
• Complementary supplies are to be made by the initial supplier and are intended either for partial renewal of supplies or installation of current use, or for extension of existing supplies or installations, if the change of supplier would oblige the contracting authority to acquire equipment of a different technical nature, resulting in incompatibility with the equipment already acquired or disproportionate technical difficulties in use and maintenance.

II. ADVERTISING AND OFFER SUBMISSION DEADLINES

Article 23: In accordance with Article 19 above, the Bank's tender notices are published in widely circulated newspapers, with publication being national or international.

8 Article 24: The deadline for submitting offers is, in principle, 30 calendar days for works contracts and 8 calendar days for supply and services contracts from the publication of the tender notice. For intellectual services contracts, this deadline is 20 calendar days. Depending on the nature or complexity of the works, supplies, services, or intellectual services, or the presumed origin of the supplies, the above deadlines may be reduced or extended. The same applies when the tender is re-launched under Article 29 below or in the case of a negotiated contract. The deadlines for submitting offers run from the site visit in cases where it is mandatory, and, in other cases, from the publication of the notice or the transmission of the request for proposals.

III. PRESENTATION AND SUBMISSION OF OFFERS

Article 25: Offers are presented in accordance with the tender documents or specifications, which also specify, for each contract, the required documents and special conditions.

Article 26: Offers from natural or legal persons ineligible for Bank contracts under the conditions defined in Article 8 are not admissible.

Article 27: Upon submission of offers, the Bank issues a receipt to each bidder. No offer is accepted after the deadline set for the submission of offers.

IV. OPENING OF OFFERS AND AWARD OF CONTRACTS

Article 28: The opening of offers takes place in the presence of any bidders who wish to attend.

Article 29: The procurement committee may only open offers if there are at least three offers. If there are fewer than three offers, the committee can only decide to relaunch the procedure. On the deadline for submitting offers for a relaunched procedure, a single offer is sufficient for opening. In the absence of bids, the Bank may resort to a negotiated procedure under the conditions provided for in Article 21.

Article 30: Subject to the provisions of the following article, offers are evaluated based on economic, financial, and technical criteria mentioned in the tender documents, in order to determine the compliant offer with the lowest price. These evaluation criteria, such as operating costs, price, profitability, quality, technical and functional value, including operating and maintenance conditions, potential lifespan of the produced works or concerned supplies and services, after-sales service and technical support, execution time, payment schedule, must be objective and relevant to the object of the contract. If, given the object of the contract, the Bank uses only one criterion, this criterion must be the price.

Article 31: For intellectual services, the award is made by reference to a minimum qualification required according to several selection methods: i. Quality-based selection and cost, based in particular on the firm's experience, the experts' qualifications, the proposed work methodology, and the proposal amount; ii. Selection based on a "determined budget" for which the consultant must propose the best possible use; iii. Lowest price selection, i.e., based on the best financial proposal submitted by candidates who have obtained the minimum technical score required. The award of intellectual services contracts is made to the bidder presenting the best evaluated offer by combining technical and financial criteria according to the selected method.

Article 32: The analysis of offers is carried out by a subcommittee designated for this purpose, in accordance with Article 15 of these regulations. The deadline for analyzing submissions is set by the procurement committee as provided for in Articles 11 to 16 above and must be mentioned in the minutes of the offer opening.

Article 33: The completion of the award procedure does not imply an obligation to award the contract. The Bank may either decide not to award the contract, relaunch the procedure, or, in accordance with Articles 20 to 23, proceed with a restricted consultation or a negotiated procedure.

Article 34: When the contract relates to several lots, the Bank has the right to award only certain lots and, if necessary, to decide that the other lots will be the subject of one or more new contracts, modifying the award method if necessary.

10 V. APPROVAL, NOTIFICATION OF CONTRACTS, AND SIGNATURE OF AGREEMENTS

Article 35: All bidders are informed in writing of the outcome of their respective submissions.

Article 36: Contracts with a value exceeding BIF 5,000,000 are notified to the contractor by letter. For contracts below this amount, notification is made by issuing a purchase order which also serves as the contract.

Article 37: The approval of contracts and the signature of related agreements are carried out according to the Bank's internal procedures.

VI. CONTRACT EXECUTION

Article 38: Execution deadlines are specified in the specifications, or in the tender documents, as well as in the contract. Failing that, they result from the contractor's offer.

Article 39: The Bank may have any person supervise the preparation and/or execution of the works, supplies, and services. The contract holder must provide the Bank's delegates with all necessary information and facilitate the execution of their mission. The holder cannot claim to be released from their responsibility because this supervision has been exercised if the works, supplies, or services are rejected for any defects or reveal hidden defects after their acceptance.

Article 40: When supervision or execution control is entrusted to a person external to the Bank, the scope of that person's mandate is specified in the contract notification, unless it is included in the specifications. b. PROVISION OF GUARANTEES

Article 41: A guarantee for reimbursement of a start-up advance, an order advance, or a performance guarantee, when required, must be provided within the timeframe indicated in the terms of reference, specifications, or contract. The performance guarantee is submitted before any payment, even of a guaranteed advance.

Article 42: If the guarantee, when required, is not provided within the timeframe indicated in the terms of reference, specifications, or contract, the Bank has the option to either terminate the contract outright or

11 apply other official measures as provided for in Article 51 of these regulations. These sanctions are subject to the Bank sending a letter of formal notice granting a final deadline to provide the guarantee. This deadline, which cannot be less than 8 calendar days, begins the day after the recipient receives the formal notice. In any event, termination of the contract for this reason excludes the application of penalties for failure to provide a guarantee and cannot give rise to any compensation in favor of the contractor.

VIII. PRICE REVISION

Article 43: When the contract does not provide for a revision formula, contract prices may only be revised in exceptional circumstances duly noted by the Directorate and accepted by the General Council.

IX. ACCEPTANCE METHODS

Article 44: Acceptance consists of verifying whether the works performed, the supplies to be delivered or ready for delivery, the products to be used, or the services rendered meet the conditions imposed by the tender documents, specifications, or contract. The Bank may be assisted by any person of its choice during acceptance.

Article 45: Works, products, and services that do not meet the required qualities are rejected. Rejected products must be immediately replaced or be subject to specific penalties under the conditions defined by the tender documents. Depending on the severity of the non-conformities, the contract may be terminated in accordance with Article 54 of these regulations. If necessary, the Bank may place the order with