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Government Contracts and Tenders (Amendment) Act 2001

Assent: 30 December 2001
Commencement: 11 March 2002

REPUBLIC OF VANUATU

GOVERNMENT CONTRACTS AND TENDERS AMENDMENT ACT
NO. 11 OF 2001

Arrangement of Sections

1. Amendments
2. Commencement
   

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REPUBLIC OF VANUATU

Assent: 30/12/2001
Commencement: 11/03/2002

GOVERNMENT CONTRACTS AND TENDERS AMENDMENT ACT
NO. 11 OF 2001

An act to amend the Government Contracts and Tenders Act No. 10 of 1998

Be it enacted by the President and Parliament as follows-

1. Amendments
   

The Government Contracts and Tenders Act No. 10 of 1998 is amended as set out in the Schedule.

2. Commencement
   

This Act commences on the date on which it is published in the Gazette.

SCHEDULE

AMENDMENTS OF THE GOVERNMENT CONTRACTS AND TENDERS ACT NO. 10 OF 1998

1 Section 2

Insert in its correct alphabetical position

“asset means:

(a) any legal or equitable estate or interest in real or personal property, including a contingent or prospective one; and

(b) any right, power, privilege or immunity, whether actual, contingent or prospective.”.

2 Section 2

Insert in its correct alphabetical position

“Government Contract has the meaning given by section 2A.”.

3 After section 2

Insert

“2A Government Contracts

(1) Subject to subsections (3) and (4), each of the following is a Government Contract:

(a) a contract or arrangement for the supply of goods or services or the execution of public works in consideration of payment out of public moneys;

(b) a contract or arrangement for the disposal of an asset of the Government;

(c) a concession or franchise granted by the Government.

(2) Any subcontract made in relation to any contract or arrangement mentioned in paragraph (1)(a) or (b) is also a Government Contract.

(3) The consideration in relation to any contract, arrangement, franchise or concession must exceed VT 5,000,000.

(4) A contract or arrangement for raising loans for the Government is not a Government Contract.

(5) Nothing in paragraph (1)(c) is to be taken to affect the requirement for a licence, permit, approval, authority or permission required under or by any other Act.”.

4 Section 9

Delete “Council”, substitute “Minister responsible for the Tenders Board”.

5 Paragraph 10(1)(e)

Delete “the Attorney-General or his representative”, substitute “a person with legal qualifications or experience appointed by the Minister after consultation with the Chairperson of the Board.”.

6. Subsection 10(2)
   

Delete “the Attorney-General or his representative”, substitute “the person appointed under paragraph (1)(e)”.

7 Subsection 10(6)

Repeal the subsection.

8 After section 10

Insert

“10A Secretary of the Board

(1) The Secretary of the Board is to be appointed by the Public Service Commission in accordance with the Public Service Act No. 11 of 1998.
(2) The Secretary is responsible for the day to day administration of the Board.”.

9 Section 12

Add at the end

“(6) To avoid doubt, the Minister responsible for the Tenders Board is responsible for actually tabling all recommendations made by the Board to the Council. Nothing is this subsection gives the Minister the power to change any recommendation of the Tenders Board. ”

10 After section 16

Insert in Part 5

“16A Contract splitting

(1) A person who enters into more than one contract or arrangement in relation to the same or substantially similar subject matter for the purpose of avoiding the requirements of the tender process provided for by this Act or the regulations commits an offence and is punishable on conviction by:

(a) a fine not exceeding VT 1,000,000 or imprisonment for a term not exceeding 1 year, or both; or

(b) a fine not exceeding VT 5,000,000 if the person is not an individual (eg a company).

(2) For the purposes of prosecuting an offence against subsection (1), a contract or arrangement entered into by a company is deemed to be entered into by each director and officer of the company.

(3) Any contract or arrangement entered into in respect of which a person is convicted of an offence against subsection (1) is void. However, any moneys paid to the Government of the Republic of Vanuatu under the contract or arrangement are not repayable despite any provision to the contrary in the contract or arrangement.

16B Regular suppliers

(1) This section applies if:

(a) more than one contract or arrangement is entered into in relation to the same or substantially similar subject matter during the course of a particular year; and

(b) the total consideration payable in respect of those contracts or arrangements for that year exceed VT 5,000,000; and

(c) one or more contracts or arrangements in relation to the same or substantially similar subject matter are entered into in a subsequent year or years.

(2) Each contract or arrangement entered into in a subsequent year or years must comply with the tender process provided for by this Act and the regulations, whether or not the individual contract or arrangement exceeds VT 5,000,000.

(3) This section applies despite any other provision in this Act.

16C Protection of whistleblowers

(1) A person who becomes aware of a breach or an alleged breach of the tender process provided for by this Act or the regulations may report it orally or in writing to:

• (a) the Director of the Department responsible for finance; or
  

(b) any other senior official within that Department or the Ministry responsible for finance.

(2) A person performing functions in or for any Ministry or Department must not victimise, or discriminate against, an employee of the Public Service because that employee has reported breaches or alleged breaches of the tender process.

(3) The Director or any senior official who under subsection (1) receives a report of any breach or alleged breach of the tender process must refer the matter to the Director General or a person authorised by the Director-General.

(4) The Director General or the person authorised by the Director-General may refer the matter to the Auditor-General, the Commissioner of Police and/or the Public Prosecutor.”.

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REPUBLIC OF VANUATU

BILL FOR THE
GOVERNMENT CONTRACTS AND TENDERS AMENDMENT ACT
NO. 11 OF 2001

Explanatory Note

The Bill provides for changes to the Government Contracts and Tenders Act No. 10 of 1998 to provide for the following:

• Provides for the appointment of a full time Secretary to the Board by the Public Service Commission;
• Now includes rules and procedures to cover asset sales and franchise or concession agreements;
• Makes splitting of contracts to avoid the provisions of the Act an offence;
• Protects those who report any breach of the Act.
  

Each item of the Schedule is covered in detail below.

Item 1

This amendment defines what “assets” means for the purpose of this Act.

Item 2

This amendment directs you to another section to find the meaning of “Government Contracts”.

Item 3

This amendment defines what are considered as “Government Contracts” and the exclusions from this definition.

Item 4

This amendment requires the Tender Board to report to the Minister responsible for the Board and not to the Council of Ministers.

Item 5

This amendment removes the Attorney-General as a member of the Tenders Board. He is replaced with a person with legal qualifications or experience.

Item 6

This amendment provides for the person appointed to replace the Attorney General to be part of the quorum for certain Board meetings.

Item 7

This amendment removes the existing provision for the Director General to appoint the Secretary of the Tenders Board.

Item 8

This amendment allows for the appointment of a full time Secretary by the Public Service Commission. The Secretary is responsible for the day-to-day administration of the Board.

Item 9

This amendment provides for the Minister responsible for the Tenders Board to submit all recommendations of the Board to the Council of Ministers without any changes.

Item 10

This amendment provides for 3 new sections.

16A Contract Splitting

This section makes it an offence to split any contracts to avoid the procedures provided for in the Act.

16B Regular Suppliers

This section applies to the provision of goods or services by regular suppliers, where such provision extends beyond the first year and whether or not individual contracts exceed VT 5,000,000.

16C Protection of whistleblowers

This section protects any public servant who reports any breach or an alleged breach of the Act from being victimised or discriminated against.

Minister of Finance and Economic Management

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