Law / Document Number (ID) :1
Type of Law:Regulations
Date Issued:1 May 2008
Date Published:19 May 2008
According to the provisions of paragraph 1 of Section 14 of the Order of the Coalition Provisional Authority (dissolved) No. 87 of 2008 We issue the following regulations.
According to the provisions of paragraph 1 of Section 14 of the Order of the Coalition Provisional Authority (dissolved) No. 87 of 2008
We issue the following regulations:
No. 1 of 2008
Regulations for Implementing Government Contracts
These regulations are to clarify the general principles for implementing government contracts that state bodies and the public sector conclude in the areas of public tenders, supply of goods and services, and consultant contracts with Iraqi and non-Iraqi parties. These regulations shall set the implementation methods of tenders, determine the duly authorized bodies for opening tenders and bids, determine methods of appeal in its decisions before the administrative court and provide that contracting procedures shall be characterized by transparency, predictability and fairness in competition.
First- The provisions of these regulations shall cover all contracts concluded by state bodies (state entities and public sector) as represented by ministries, entities not related to a ministry, regions and governorates with Iraqi and non-Iraqi parties in order to implement public projects contracts, consultation contracts or for the supply of products and services.
Second- These regulations shall apply for state projects and contracts financed by international or regional organizations according to agreements or special protocols concluded with Iraqi parties for this purpose. It shall be permissible to use what is stated in these regulations as guidance for what is not stipulated in the text of applicable contract agreements, or protocols, and in a manner not inconsistent with the rules and regulations approved by these organizations.
The text of No. 3 of paragraph (D) of item First of Article 3 of the Regulations Implementing Government Contracts No. 1 of 2008 was repealed.
According to the first amendment of the Regulations Implementing Government Contracts No. 2 of 2010:
First- The contracting parties in ministries and entities not associated with a ministry and regions and governorates not organized into a region shall meet the following requirements before preparing tender and bid documents:
A- A previous approval from the Ministry of Planning and Development Cooperation regarding a technical and economic feasibility study regarding the projects by the authorized parties accompanied with an application for project (application for follow-up of implementing investment projects), when discussing the project in order to enlist it within the plan in accordance with the regulations No.1 of 1984, and its amendments, issued by the disbanded Planning Council.
B- An updated study regarding the project’s estimated cost for the required work in order to use it as a measure for analyzing bids and implementing contracts provided that confidentiality is maintained.
C- The availability of allocated amounts within the federal general budget as supported by the competent authorities for the implementation of the contract. There should be within the bidding documents an indication as to the special classification of the project within the plan.
D- All terms, specifications, quantity schedules, maps and other aspects that are necessary for implementation shall be prepared in a way to avoid any changes during implementation, or additions during implementation, taking into account the following:
1- Duly authorized financial authorities to decide the subject stated in Special Federal Budget Law.
2- Special rules for implementing projects through completion in the regulations of investment projects for the general federal budget.
3- Head of the contracting entity may make changes by adding volumes for supplies contracts, and consultation services, not exceeding 20% of the value of the contract when funds are available.
4. Rules and procedures for examining contractors' compensation requests as a result of increase in prices and which are issued by the Ministry of Planning and Development Cooperation in this regard.
E. An approval by the related parties as to the site and the land for the project or for the works when implementing public works contracts.
F- All legal and financial problems at the work site, if any, including procedures for site possession, shall be addressed when implementing public works tenders.
G- The site shall be prepared to start work, totally or partially, within the time schedule.
H- Taking any necessary procedures that may be needed according to the nature of the required project or contract.
Second- The value of one set of general and limited contract documents and tenders is estimated through two stages by a price in accordance with its relative importance and cost of establishing the project and shall ensure participation in the project and the contractor who has previously participated in the re-announced tender, has the right to submit the previous purchase receipt, for participation, accompanied with the bid documents. In case of amending the purchase prices of tender documents then the participating party shall cover the difference between the two prices and shall accompany his tender with the first and second receipts.
Third- A- The announcement shall be published in at least three official newspapers, taking into consideration that the newspaper published by the Ministry of Finance shall be one of these newspapers. If the Ministry of Finance newspaper ceases to exist then the announcement shall be published in widely distributed newspapers provided that the winner of the bid shall pay for the expenses of publication and last announcement. The import of foodstuff and medicine shall be exempt from this request taking into account the provisions (1) of Paragraph (C) of Item First of Article 5 of these regulations.
B- The tender announcement shall be issued on the Ministry's website and on the Ministry’s bulletin board, and also with the commercial attachés of the Iraqi Embassies and the site of United Nations for Business Development and DGMARKET regarding international general tenders.
The text of Paragraph (A) of Item Four and the text of Item Five of Article 4 according to Article 2 of Item First and Second of the first amendment of Regulations Implementing Government Contracts No. 1 of 2010 were repealed, and replaced with the following:
The contracting party may use the following tender methods when implementing budget projects or general contracts of all kinds.
First- General Tender: This shall be either national or international determined per the authorities granted to the head of the contracting party and taking into account the nature of the contract and its value. This tender shall be conducted through an announced invitation for those who have the desire to participate in implementing projects with values less than 50,000,000 Iraqi Dinar or any other amount determined by the concerned parties taking into consideration that procedures shall be conducted in a manner that is open to the public and competition is fair.
Second- Limited Tender: This is conducted by an announced invitation to all those who have the desire and qualifications to participate in contracts with values less than 50,000,000 Iraqi Dinar, or any other amount determined by the competent authorities, and includes two phases:
A- Phase One: It includes submitting special documents concerning the qualifications of participants in the tender and according to the applicable legal documents relevant to the topic. These documents are evaluated so as to select contractors that are qualified to participate in the second phase.
B- Phase Two: An invitation (free of charges) for not less than six qualified contractors to participate in the tender in order to evaluate their technical and financial abilities in relation to their bids.
Third-Tender in two stages:
A- The head of the contracting party or any duly authorized person may use tender of two stages to determine the best way to meet the contractual needs. This method shall be used for contracts of complicated technical descriptions, or when it is necessary to apply descriptions, but not necessary to draft details of the technical descriptions, to determine characteristics or features accurately for the goods, or works, in the case of services.
B- It may be permissible to start the process of submitting bids during the pre-qualification stage as stated in Item Second of this Article. For the purpose of implementing this method the following shall be taken into account:
1- Stage One: An invitation shall be submitted for bidders to submit their technical bids first based upon initial design and effectiveness to the head of the contracting party who may amend the estimated value when necessary.
2- Stage Two: Invitation of those winning bidders according to the technical specifications in Stage One to submit their financial bids according to stipulations determined by the contracting party.
Fourth- Direct Invitation-
A- This is conducted through an invitation for not less than three contractors and/or companies and/or other agencies that have the technical and financial capability to implement the contracts according to the following:
1) If bidders decline to participate in the announced tenders for the first time.
2) If the contract is a consulting contract.
3) If the contract is of a special nature and for reasons of maintaining secrecy in the implementation, or speed in completion, or for security reasons.
4) If the purpose is to achieve speed and efficiency in implementation in cases of emergency and natural disasters, preparing medicines or life saving tools.
B- Supplying contractors and consultants the bidding documents free of charge.
C- Those who submit bids based upon direct invitation shall be exempted from providing security deposits.
D- Financial consideration shall be taken into account when referrals are delivered based upon this method.
Fifth: Single Bid Method- Free invitation from the contracting parties to one bidder regarding single source contracts to provide supplies, execute works, special consulting or manufacturing when it is necessary and when there is a justifications taking into account the following procedures:
A- Informing the Central Contracts Committee in the General Secretary of the Council of Ministers for the purpose of implementing the contract using these methods accompanied with justification provided that this document is submitted by the contracting parties in ministries and entities not related to the ministry and regions and governorates not organized into a region.
B- Financial authorities approved by the contracting parties in implementing public works and the central contracting committee of the Council of Ministers shall be informed of this for the purpose of approving the recommendations of bidding committees when the contracting authority falls outside the jurisdiction of the head of the contracting party.
C- In case the central contracting committee does not decide or approve the applications submitted by the contracting parties within a period of not more than fourteen days from date of registration before said committee, then the approval shall be assumed and the contracting parties shall maintain secrecy in the process of awarding a contract and its implementation.
D- The entity that receives the invitation shall be exempted from depositing securities.
Sixth- Purchasing Committees:This method is conducted in respect to commodities and services whose values are less than 50,000,000 Iraqi Dinar, or any other amount determined in the current budget, taking into consideration the special regulations issued by the Ministry of Planning and Development Cooperation in coordination with relevant parties to the subject.
The text of paragraph (C) of Item One and Item Four of Article 5 according to Article 3 of Items First and Second were repealed, and replaced with the following:
First- The following procedures shall be followed when advertising for the general bidding:
A- Name of tender, its number, address and the category listed in the budget.
B- A brief description of the project or contract along with details of the required goods and services.
C- The announcement period for the tender or for the direct invitation as follows:
1) Period of 1-60 days shall be determined according to the importance of the contract and assessment of the head of the contracting party and shall start from the date of last announcement in the newspaper.
2) Contracts for supplying foodstuffs and medicines shall be excluded from item 1 of this paragraph.
3) Period of submitting bids for direct invitation and single tender shall be determined according to the estimate of the head of the contracting party.
D- Specify the date and the place for submitting bids, the expiration period and the place and date of selling tender documents.
E- Determination of preliminary security deposits of submitted tenders.
F- The tender’s closing date.
G- The price of tender documents is non-refundable.
H- The contracting party website and email address for the administrative entity responsible for tenders.
Second- The information for those who submit tenders (public works, consulting services and supplies) shall include:
A- General principles of the contract to be signed, method of wages, or agreed upon amounts as a percentage or lump sum, or paid expenses and other means, taking into account the provisions related to the subject in regard to the federal general state budget.
B- Specify government ownership of the designs, maps and the specifications prepared by the party to which invitation was submitted directly when contracting with it, except in special cases based upon the approval of the relevant minister. These parties shall prevent disclosure of any information regarding the nature of the contract, unless there is specific authorization from the relevant ministry.
C- The bidders shall attach other bids of similar works, if they have any, as verification of qualification.
D- Specifying the date and place for opening bids.
E- The contractors shall clarify capabilities of their technical staff and specialized full-time and the part-time employees during the implementation of different projects or consulting contracts.
F- Contractors shall submit an implementation plan for the required work.
G- Determine the meeting date of a special conference regarding issues raised by participants in the tender, which shall be on a date within seven days before the closing date of the tender, with the exception of bids for supplying foodstuffs.
H- The grade and classification of the required Iraqi contractor as related to the public works project contracts to be implemented. The foundation certificate and the professional practice certificate as regards the companies and officially licensed offices.
I- The cost price for the supply contracts is determined in light of the place of arrival (CIP, CFR, CIF, FOB and others).
J- Determining late penalties in light of the contracting provisions (shipping delay penalties, delivery delay penalties).
K- The contracting party shall not be obliged to accept the lowest bids.
L- The state contracting party may cancel the bid without compensation and purchase cost of tender documents shall be reimbursed.
M- Include other information for contractors, or documents needed according to the nature of the work being implemented or materials needed or any consultations which need to be submitted.
N- Recording bid prices in writing or in numbers.
O- It shall not be permissible for the contractors to cancel any item of the tender documents or any procedures whatever its nature.
P- The tender documents shall include the approved mechanism for calculating the preponderance of winning used in analyzing bids.
Q- It shall not be permissible for those employed by the state or the public sector to participate in bids either directly or indirectly.
R- Request from those contractors submitting bids to provide their website address, email address and address of the person in charge for follow-up questions regarding the tender in their tender documents.
Third- the contracting party may extend the announcement period for the tender one time when necessary and taking into account the following:
A- Approval of the head of the contracting agency or any duly authorized person taking into account the financial authorities for contracting purposes.
B- Issuance of an annex announced in the same newspaper where the announcement was published and a copy shall be sent to all participants in the tender. Before the last date to accept the bids.
Fourth- If the bid exceeds 25% of the estimated budget, the head of the contracting party or any duly authorized person may accept the bid and analyze it provided there are sufficient funds within the total cost of the project and on the condition that the Ministry of Planning is informed.
Fifth- There shall be a re-announcement of bids in one of the following cases:
A- If bids are not submitted within the period of the announcement or in case of submittal of only one bid within this period taking into account that in case of submittal of more than one bid, and one of them is acceptable technically and commercially, then it shall be accepted and the process of analyzing and assigning the bids shall be performed.
B- If the amount of the best bid for those contractors exceeds the percentage determined in item Fourth of this article when analyzing the estimated cost for the purpose of contracting for implementing projects or listed work in the budget.
C- The head of the contracting party, or any authorized person, may accept a bid and analyze it if it exceeds the estimated costs for purposes of contracting by no more than 30%, provided there are sufficient funds and within the total cost of the project. The central contracting committee of the general secretariat of the prime ministry shall be informed of the justification in order to obtain approval of the award of the contract. The committee shall make the appropriate decision within a period of 14 working days from date of registering the request by the contracting party. Approval shall be presumed if there is no answer taking into account the authority stated in item Fourth of this article.
Sixth- The following procedures shall be followed in case of re-announcement:
A- Getting the approval of the concerned minister or the head of the agency which is not connected to any ministry or by any authorized person while informing the Ministry of Planning and Development Cooperation of this and determining the period of announcement in accordance with the provisions of paragraph C of item First of Article 5 of these regulations.
B- Informing the contractors who have participated in the past tender of the re-announcement.
C- The same serial number of the past tender shall be adopted for the new tender and that is to be mentioned in the new announcement.
D- Informing the concerned parties of the re-announcement.
E- Investigation of the reasons for lack of participation in the first announcement of the bid.
F- In case of re-announcement for the second time a single-tender bid shall be acceptable upon the following basis:
1. The cost of tender shall be within the estimated cost taking into account item Fourth and paragraph C of item Fifth of this article for the purpose of allocating the project funds or contract implementation.
2. The tender shall meet the technical specifications or the required conditions in the tender announcement.
3. In case that the price of the best bid after the second announcement occurred is more than the estimated cost stated in item Fourth and paragraph C of item Fifth of this article for the purpose of contracting to implement the project or the work, the Ministry of Planning and Development Cooperation shall be informed to take one of the following procedures:,
A- Postponement of implementing the project to the next year.
B- Benefiting of the amount allocated for implementing other projects.
C- Increase of the total cost for purpose of contracting within the total cost of the project in the plan.
4. In the case where no acceptable bid is submitted in the second announcement then the head of the contracting agency either may choose to make a third and last announcement or do whatever is necessary to change the method of implementing the contract taking into account the means approved in this regard.
The provisions of items First, Second, Third, Fourth, Fifth and Sixth of this article shall apply to construction contracts for civil, electrical, mechanical, and chemical engineering and preparing contract and consulting services contracts.
Formations of the Bid Opening and Divisions and its Tasks
First- A Central Bid Opening Committee, or more than one, is to be formed in each ministry or any agency not related to a ministry, for the opening of bids. This Committee is to be headed by an employee whose grade is not less than a general director, with members representing the legal and finance directorates of the contracting party, in addition to an employee with an engineer title and a secretary whose job title is not less than superintendent.
Second- It is permissible to form a Bid Opening Committee within the structure of a related ministry or the other agencies that are not related to a ministry. Each of these committees is formed as it is stipulated in the first section of this article.
Third- A Bid Opening Committee shall be formed in each region, or governorates not organized into a region, headed by the head of the contracting party or any duly authorized person and memberships of two persons having specializations (legal, financial, technical, and the contracting party), and a representative of the governorate council whose job title is not less than a superintendent. Its duty is to open the bids that are announced within the region or the governorate.
Fourth-A Bid Opening Committee may be formed within the departments of any region or governorate. Such committees will be formed on a similar basis as that mentioned in the third section of this article.
Fifth- Bid Opening Committees shall follow the following procedures when carrying out its duties:
A- The bids are to be kept in a special box of the concerned department backed by a receipt prepared in two copies. One receipt copy is given to the contractor whereas the second copy is to be kept with concerned department. In addition, the following information will be recorded in a special register:
1. Name and number of the tender as mentioned in its documents.
2. Name of the contractor and contractor’s official representative with full address inside or outside Iraq.
3. Name of the officially authorized bearer of the tender, address and signature.
4. Time and date of submitting the bid.
5. Additional attachments included with the bid, if any.
6. Bids may be sent by secure mail service (registered mail) and received before the closing date of the tender. The secretary of the Committee must register these tenders upon receipt.
7. It shall not be permissible to give any information to any un-related entity regarding the names and addresses of the bidders or their representatives during the period of the announcement to maintain the confidentiality of procedures.
B- The head of Bids Opening Committee shall assure the presence of committee members and in case some of them are absent then employees of similar specializations shall replace them as determined by the head of the contracting party or any duly authorized person.
C- The Bids Opening Committee shall meet directly after the ending of the identified closing date of the tender or at the beginning of the official starting hour of the next day. The Committee opens the bids publicly with the attendance of the contractor’s representatives, in a previously specified place. This is to be recorded in official minutes wherein the following should be specified:
1. Verify presence of stamps over bid covers.
2. Bids that are not accompanied by the primary prepaid bond amounts.
3. Bids that are based upon the reduction of a certain percentage rate or a fixed amount, out of the other bids that are being submitted for this tender.
4. The amendment of previous tender offers, whether technically or financially, and the bids which were presented during the announcement period shall be excluded. Old bids shall be returned to their owners.
5. Number of the pages that each bid is composed of.
6. Put a clear mark around each mark, erasure, addition or correction that appeared in the priced bill of quantity schedule, with the signature of the head and members of the Committee.
7. Put a horizontal line beside each paragraph, which is not priced within the priced bill of quantity schedule with the signature of the head and the members of the Committee.
8. Verify that the person who handed over the bid has signed all the pages of the priced bill of quantity schedule and attachments.
D. It shall be pointed out in the Committee’s report the remarks or their reservations related to issues shown in the bid and the attachments.
E- Mark all the pages of the bid with the Committee’s stamp and mark all of the priced bill of quantity schedule with the signature of all Committee members.
F- Marking all pages of the bid with the signing of the seal of the Commission members on all pages of the bidder’s price chart.
G- Point out clearly any information or details that are not given with the bid, and that they shall have to be given in accordance with tender instructions.
H- After opening of all bids as specified within these regulations, the head of the Bid Opening Committee will carry out the following:
1. Post the contractor’s prices on the announcement bill board as they are mentioned in their bids, emphasizing that the declared prices are subject to audit and analysis.
2. The Committee report is prepared and signed by the chairman, members and the representatives of the contractors with clarifying any notices about the committee’s work, if any.
I- Bids and their attachments are sent to the Bid Evaluation Committee through a special report.
Formation of Bid Analysis and Evaluating Committees and their Tasks:
A Bid Analyzing and Evaluating Committee is to be formed in each directorate according to its needs for the studying and analyzing of the technical and financial aspects of a bid. The Committee is headed by a specialized and experienced employee whose job title shall be not less than a director general or chief engineer. The members of this Committee shall be specialized technicians including legal and financial persons. The Committee has the right to ask for help from other specialized parties who are experienced with the nature of the bid. All recommendations of this Committee shall be approved by the contracting party or any duly authorized person. The Bid Analysis and Evaluation Committee shall analyze bids by the following procedures:
First- Exclude bids that are not accompanied by the primary required prepaid bond amount.
Second- Exclude bids that are based on the reduction of a certain percentage or fixed amount out of any other submitted bids in this tender, and to refuse any reduction in the price submitted after the closing date of the tender.
Third- The process of analyzing the bids shall be carried out secretly. The final report shall be presented to the responsible authority of assignment within the period determined by the head of the contracting agency taking into account the award deadline for those who submitted bids.
Fourth- It shall not be permissible to send the bids outside Iraq to analyze them. But the consultants who are located outside Iraq shall send their representatives to Iraq to carry out the required analysis, unless the nature of the work requires otherwise, taking into consideration the approval of the concerned minister or head of the agency not related to the ministry or head of the contracting parties in the regions, and governorates not organized into a region or the central contracting committee of the Council of Ministers in accordance with the approved authorization. The original document may be kept by the contracting agency.
Fifth- In case there are certain deductions with certain rates or fixed amounts, the reserve amounts being shown within the quantitative schedule shall be offset as to the contractor’s prices for the purpose of comparison and analysis.
Sixth- Any reserve amounts of money in the price list of the bidders shall be excluded as well as not needed amounts from the bid documents when comparing and analyzing.
Seventh- Prices of all bids shall be calculated on a uniform basis. This shall be stipulated within the tender documents.
Eighth- The price that is taken into consideration is that which is mentioned in writing when it differs with that which is written in numerals and also the price of a unit is to be taken into consideration in case of error in the bid.
Ninth- If items are not priced within the submitted contract then the cost of this item or items will nonetheless be considered within the total cost of the bid.
Tenth- The following criteria will be followed to determine the best bid:
A. Reject bids which do not meet the required technical specifications, even if it is the lowest in cost.
B. Reject bids of contractors which do not show evidence of experience with previous contracts of similar work. This shall apply to contractors and consultants.
C. Consider the financial efficiency of the contractor through submitting final accounts certified by a chartered accountant for the previous year.
D. Volume of financial obligations of the contractor during the year.
E. The ability of the contractor to meet the completion dates and final acceptance.
F. The contractor should provide a listing of past works performed.
G. Availability of technical and skill capabilities for the implementation of the contract (engineering, technical staff, and special equipment). A list of the accomplished works or similar works if any.
Eleventh- If so indicated in the tender document, a priority rate is given to the bid offer in order to take into account the financial and technical aspects of the tender when nominated for the referral.
Twelfth- If a disagreement occurs among the Bid Analysis and Evaluation Committee members then this difference in opinions shall be written in the final report and the matter shall be decided by the head of the contracting agency.
Thirteenth- After the end of the analysis process a table shall be prepared of all bids with related details and shortcomings (if any) and make a comparison from technical, legal, and financial aspects.
Fourteenth- The final report shall include a special field indicating the recommendation of the Bid Analysis and Evaluation Committee stating the name of the nominated name to win the tender, his nationality according to the attached schedule, amount of tender, its currency, period of implementation, the principles referred to by the Committee in making this recommendation, and the amount of bid within the acceptable limits of estimated cost. The report shall be stamped with date after signature by the head and members of the Committee.
Fifteenth- It is not permissible to negotiate prices with the nominees.
Sixteenth- The Bid Analysis and Evaluation Committee may supplement the bid for short-listed contractors, as to missing data of minor importance.
Seventeenth- The contracting parties may request the release of the prepaid bond submitted with the bid before the end of the bidding analysis period or before the awarding of the tender to a contractor. It is done only upon the request of the contractor who does not expect the tender to be awarded to them, but in all cases such amounts are kept for the first three nominated contractors.
Eighteenth- Verifying the personal information required in the tender documents from the concerned parties before referral including documentary credits.
Nineteenth- The Bid Analysis and Evaluation Committee shall submit its recommendation of the referral to the head of the contracting agency for finalization according to the authorities given to him for the purpose of contracting.
A- Financial considerations of contracts shall be taken into account and in case of exceeding the authority in contracting then the head of the contracting agency shall inform the central contracting authority of the Council of Ministers to obtain the necessary approvals for the purposes of contracting within a period not exceeding 14 days from the date of submission. Approval shall be presumed when it is not decided within the specified period of time.
B- Referral decisions shall be effective from the date of notification and signature of the contract within a period not exceeding 14 days from the date of notification after approval of the head of the contracting agency and informing the other bidders of the referral decision.
C- If the winning bidder refuses to sign the contract within the period stated in paragraph (B) of this item then the contracting agency shall issue a warning of the necessity to sign within 15 days from the date of notification and, in case of refusal, the contracting agency shall take the necessary procedures stated in item First of Article 16 of these regulations.
Preparing Contract Formation:
First- All ministries and agencies not connected to a ministry shall organize their contracts in coordination with technical and financial departments and the beneficiary agencies and shall include provisions related to tender conditions or invitation adding any additional conditions agreed upon by the parties that guarantee safety of implementation according to model contracts issued by public contracts department in the Ministry of Planning and Development Cooperation.
Second- Public contracts should include text to collect government debts according to the Law for Collecting Government Debts No. 56 of 1977.
Third- Contracts shall include names and addresses of parties authorized to sign contracts and delegation documents according to the procedures followed provided that these procedures shall be effective at the time of contracting and issued before signature of the contract for a period of no more than 3 months.
Fourth- The contractor may assign part of the contract to sub-contractors with the approval of the contracting agency provided that contractual responsibility shall remain with the principal contractor for the implementation of the contract. It shall not be permissible to relinquish piece-work to a sub-contractor.
Fifth- The contracting agencies in the ministries and entities not associated with the ministry and regions and governorates not organized into a region shall inform the Ministry of Planning and Development Cooperation, Ministry of Labor and Social Affairs, Iraq Central Bank and Central Statistics Department of the name of the contractor, his nationality, amount of contract and duration.
Sixth- If the contract calls for payment as an advance after the contractor signs the contract, then the contracting agency may require all contractors to submit a letter of credit issued by a trusted bank in Iraq taking into account the procedures followed according to the provisions of the General Federal Budget Law.
A. Contracts shall be written in Arabic, Kurdish and English language whenever possible.
B. The tender document shall determine the prevailing version in case of difference in interpretation.
Letters of Credit
The following procedures shall be taken into account when opening letters of credit to cover foreign purchase contracts (supply of materials, work implementation, and service purchase) when contracting with foreign and Arab companies:
First- The concerned ministry (or entity not associated with the ministry or region or governorate not organized into a region) after awarding the contract, and duly signing the contract, shall obtain the performance bond by taking the necessary procedures to open the irrevocable letter of credit.
Second- Opening of an irrevocable letter of credit shall be made according to international customs and rules for letters of credits through one of the reliable Iraqi banks in accordance with the special banking certificate, whereby the certificate should include all the financial provisions related to the procurement and supply process and other conditions agreed upon between the two contracting parties (seller and buyer).
Third- The process of opening a letter of credit shall abide by the following:
A. Determination of the name of the beneficiary (seller) and his full address.
B. Description of the needed goods in addition to the number and date of the contract.
C. Type of commercial sale according to international trade rules (Incoterms) which is determined on the basis of (FOB, CIF, CFR and CIP) or others and according to contract conditions.
D. Determine the method of shipping (land, air, sea or other) and final destination.
E. Determine partial shipment or not so as to receive the goods in several parts or at once taking into account that paid financial dues are balanced with the received shipments.
F. Statement to use more than one transshipment or not.
G. Stating the duration of the letter of credit in accordance with the contract terms.
H. Determination of the delivery time as agreed upon.
I. In case it is necessary to extend the letter of credit then the period of bonds or guarantees shall be taken into account.
J. It shall not be permitted to make any changes or extensions regarding the irrevocable letter of credit, unless after securing the agreement of both contracted parties.
K. It is not permitted to revoke the irrevocable letter of credit unless it is done by a written request through the client himself on condition that the beneficiary (the seller) agrees, or it is done by a request from the correspondent bank to revoke the letter of credit based on the beneficiary’s demand after taking into consideration the approval of the purchaser.
L. In the case of an advance payment, the irrevocable letter of credit shall be received with same amount and similar currency, which shall cover the advanced payment in condition that the letter of credit has been issued through a reliable Iraqi bank.
M. In case the seller insists to open irrevocable and confirmed letter of credit then the confirmation charges shall be paid by him.
1- All special expenses arising from the opening an irrevocable letter of credit inside Iraq shall be covered by the buyer who asked to open the letter of credit.
2- All expenses and interests arising from opening the letter of credit (outside the country) shall be covered by the buyer (the beneficiary).
3- It is required when contracting that seller shall pay these expenses and shall be confirmed in the text of the letter of credit.
N. The bond shall cover all risks and the letter of credit shall state whether insurance is covered by the seller or buyer and on the basis of CIF or CIP.
O. Determination of the conditions of payment and how to release these payments based on the contract between the parties (seller and buyer). The method of releasing payment shall be determined accurately and by determining the type of documents to be presented by the seller in order to receive his financial rights.
Fourth- Determining the required documents and papers for letter of credit, its approval, and negotiation according to the rules and international customs (UEP 600).
Fifth- The import license provisions for the materials, or the equipments that are to be imported in accordance with the law, shall be attached.
Sixth- The concerned ministry, or entity not associated with the ministry or regions or governorates not organized into a region shall follow up the shipping process and receipt of the seller's notice that details shipment of goods taking into account the following:
A. Complete customs clearance procedures for equipments or received materials in order to ease the arrival at storage houses.
B. Complete the special procedures for clearance and loading as soon as possible within the specified areas to avoid paying fines for late delivery of goods to the airport or customs.
C. Complete the unloading process as soon as possible within the specified areas and unload the ships to avoid demurrage.
Seventh- Preparing equipments and usage tools in storage units for the purpose of completing the demurrage procedures and initial receipt of received goods without delay taking into account the status of received goods for the purpose of securing insurance rights.
Eighth- Follow up with completing engineering inspection procedures for received items and issue of inspection certificate within the period determined in the contract and date of receiving the materials.
Defects, loss, and damages
A. In the cases whereby the items received are defective, or do not meet the technical specification as requested, then a certificate shall be issued for the difference by an Acceptance and Inspection Committee formed by the contracting agency. And the seller shall be notified without delay to replaces these items.
B- In case of missing items or presence of damage in all or part of these items then a report shall be issued by the Acceptance and Inspection Committee and the seller shall be notified of the missing items and damages for compensation when sale is based upon CIF or CIP as the insurance is covered by the seller.
C- In case insurance is covered by the buyer and there are missing items or damages then a report shall be issued for the difference, and the national insurance company shall be informed for purposes of compensation.
Tenth- The procedures issued by the Council of Ministers regarding opening letters of credit and methods of implementation shall be followed.
A. The conditions determined by the buyer to the bank issuing the letter of credit shall be clear, accurate, and transparent.
B- It shall not be acceptable to open a transferable letter of credit with the exception of assignment to manufacturing entities as stipulated in the contract.
C- In case of advance payment of a certain percentage out of the total amount of the letter of credit, then the advance payment shall not be made to the seller until the receipt of a bank guarantee of the value of advance payment and in the same currency provided the guarantee is unconditional on demand so that the buyer can withdraw that guarantee without the need of notice or judicial order.
D- It is not preferable to load goods on deck.
E- A follow-up of bank receipt for open letters of credit through the opening bank shall be made for the purpose of knowing the movement of credits and relevant costs and financial settlements.
F- The contracting agency shall monitor the open account of foreign currency so that the financial account shall suffice to cover the value of the letter of credit which is opened for implementing a certain supply contract, and not give any contractual obligation for a foreign entity unless there is proof of sufficient funds in foreign currency to cover the value of the letter of credit which was opened to fulfill this obligation.
G- In case of contracting with foreign parties to implement a certain work, supply (equipments, materials, tools) or purchase of service, this requires opening irrevocable letters of credit to cover the value of the contract after study of the special conditions of the letters of credit according to the rules and international principles of letters of credit before approval of the contract.
H- In case of supply of tools or equipments or any goods that need guarantee for use or maintenance, then the percentage of the letter of credit shall be kept for the purpose of covering the needs, provided that it is referred to in the special payment conditions of the letter of credit.
I. When the parties agree to modify the contract, then the bank that opened the letter of credit shall be notified to take necessary measures.
Mechanics of settling Disputes
First- Disputes shall be settled before contracting as follows:
A- A central committee shall be formed in each ministry or any other agency that is not related to the ministry including the governorates to look into objections and contractual complaints. The committee shall be under the direction of the concerned minister or governor or any duly authorized person. Its members are a group of experts and specialists and the secretary of the committee shall be no less than a superintendent.
B- The duty of this committee is to study the appeals and the complaints that are submitted by bidders, or their official agents, of those who did not request withdrawal of preliminary guarantees as stated in item Seventeenth of Article 7 of these regulations, to the concerned contracting party within 7 days upon the date of the issuance of the transferring letter (assignment); and to give its recommendation to the concerned minister or head of the entity not associated with the ministry, head of the contracting agency in the regions or governorates not organized into a region within a period not exceeding 15 days as of the date of registering the complaints with the minister’s office. The concerned minister shall issue a decision within 7 days from the date of receiving the report of the committee.
C- The contracting parties in ministries and entities not associated with the ministry, regions, and governorates not associated with the ministry shall be patient in signing contracts until the dispute is resolved by the concerned minister or governor taking into account the special legal time limits for examining appeals stated in paragraph B of item First of this article provided that the appellant shall submit a formal undertaking to pay damages for the contracting party for delay in signing the contract if his claim is malicious or unjustified.
Second- A- special tribunal is to be formed by a decision of the Minister of Planning and Development Cooperation for dispute resolution. The Tribunal will be specialized as to government contracts. It shall be chaired by a judge named by the Supreme Council of Judges with members representing the Ministry of Planning and Development Cooperation whose post shall be equivalent to a Director General and a representative of the Iraqi Contractors Union and union of chambers of commerce..
B-The Tribunal shall have a secretary whose title is not less than a superintendent.
Third- Contractors shall submit their complaints (objections) to the administrative tribunal formed at the Ministry of Planning and Development Cooperation stated in item Second of this article within 7 days upon the date of the issuance of the transferring letter by the ministries, entities not associated with the ministry, regions and governorates not organized into a region, and to give its recommendation to the concerned minister.
Fourth- The tribunal shall issue its decisions to solve the dispute during a period not to exceed 120 days upon the date of paying the legal fee.
Fifth- The tribunal decision shall be final when not appealed to the court within 30 days of the next day from the date of notification.
Sixth- The duties assigned to the tribunal shall be practiced by it in accordance with CPA Order No. 87–2004 which was issued by the Coalition Provisional Authority (dissolved). The tribunal shall be guided by the Civil Code Procedure No. 83–1969 in whatever is not stipulated in these regulations.
Seventh- The general contracts directorate in the Ministry of Planning and Development Cooperation shall follow the decisions issued by the court in coordination with the concerned entities.
Settling Disputes after Signing the Contract:
First- Disputes shall be resolved after signing public contracts of all kinds by using one of the following means:
A. Conciliation: By forming a combined committee by the disputing parties (the contracting party, contractors, or consultants) to study the subject and agree to deal with it according to the effective laws and regulations regarding the subject of the dispute.
B- Arbitration- By selecting an arbitrator by each party who shall have experience and knowledge of the dispute and the two arbitrators shall select a third one as head of the arbitration committee. In case this is not applicable, then the court shall select the third arbitrator. The arbitration committee shall study the subject and all its details and the committee shall issue its final decision for settling the dispute. The losing party shall pay the arbitration expenses and the decision of the committee shall be binding after approval by the court according to the law.
C- Referring the dispute to the courts to issue a decision taking into account the relevant law to settle disputes.
D- The contracting agency may select international arbitration to settle disputes provided that the contract shall provide for this facility and when one of the parties is a foreigner taking into account the procedural mechanism agreed upon in the contract when using this method and one of the international arbitration associations shall be selected to settle the dispute.
Second- The contracting parties shall select the best method to settle disputes as a result of implementing the contract as stated in item First of this article according to the contractual conditions agreed upon.
Duties of the General Formations of Contracts Office:
The General Formations of Contracts Office in each ministry or entity not associated with the ministry or region or governorate not organized into a region as they are stipulated in section (2/1/A) of CPA Order No 87–2004 to take over the process of following up the implementation procedures of the public contracts that are being contracted for with these parties. These departments practice their duties according to the contract law issued by CPA Order No. 87–2004. They shall coordinate work with the Inspector General Directorate of the concerned ministry, or that of the region or the appointed governorates. They shall follow up the adopted measures of the Governmental Contract Directorate in the Ministry of Planning and Development Cooperation regarding these cases.
Compliancewith lawsand regulations:
All contracted parties or any other persons who have participated in the contract process shall be prohibited from disclosing information to any person who does not have any relation with the contract.
Contract term and extension:
The contracting agencies shall follow procedures when extending contracts:
First- The contractor shall implement the contract within the contractual period provided that the period shall start from date of starting work, signing the contract or any other date stated in the contract conditions. When extending contracts the following shall be taken into account:
A-If there is any increase or change in works for different contractors or required materials quality or quantity which affects the course implementation so that it is impossible to complete the work within the period agreed upon in the original contract.
B- If delay in the performance of contract relates to reasons or procedures of the contracting agency or any authorized entity or any reason related to the other contractors used by the contracting agency (the employer).
C- If there are exceptional circumstances outside the control of the contractors that cannot be avoided when contracting and shall lead to delay in completing works or preparing required materials according to the contract.
Second- When applying the provisions of item First of this article, the contractor shall submit a written application to the contracting agency or any authorized person within 15 days for supply contracts, and 30 days for consulting contracts, from the date of the reason for which the application is submitted, requesting extension and detailing all matters regarding the extension. The contracting agency shall decide the matter within a period not exceeding 30 days for all kinds of contracts starting from the date of receipt of the application. No applications shall be accepted after issuance of first receipts stated in the conditions of the contract.
Changing works and additional works:
First- It shall not be permissible to order changes in the works agreed upon or to make any additional works, or new materials, unless it is necessary and the change shall occur in a limited manner when one of the following occurs:
A- If no change or addition would cause delay for the work or huge damage from a technical and economic perspective.
B- If no change or no addition would cause unnecessary contractual works.
C- If the change or addition would saving work or project cost.
D- If the change or addition would not cause material alteration in the service or production capabilities for the project or work.
E- If the change would shorten the contract period provided that it does not lead to lowering of the technical standards of the work or project.
Second- All correspondences regarding orders of changes and additional works shall be expedited and the contracting agency shall finalize such orders within the period stated in item Second of Article 14 of these regulations.
Third- Additional works and orders of changes shall not be implemented unless there is a written order (change order) issued by the contracting agency according to the contract term that includes a description of the work, amounts, prices, and additional period (if any) which is added to the period of the contract. In case there is no need for any extension then this shall be stated clearly in the order.
Fourth- The contracting agency shall determine the changes or required additions needed in the contract as early as possible in a manner not affecting the work progress according to the agreed upon timetable.
Fifth- Additional works and orders shall be priced according to the terms of the contract and in case of adding new items that have no equivalent or similar items in the contract, then the prevalent market price shall be adopted as the basis for pricing, in addition to administrative expenses and profits.
Sixth- It shall not be permissible that the cost of change orders and additional works exceed the authorities given to the concerned minister or governor taking into account the provisions of the general federal budget.
Bonds, delay fines, and administrative costs
First- Legal Bonds
A. The primary prepaid bonds that are submitted by the participants in the tenders are not accepted unless they take the form of a letter of credit, certified check, bank guarantee, or security bond issued by the government of Iraq.
B. The bidders shall submit preliminary guarantees to prove the seriousness of their participation in the tender, for all kinds of contracts, at the rate of 1% of the contract price, from a recognized bank according to a statement made by the Iraq central bank regarding financial capabilities of the bank.
C- Preliminary guarantees or bonds shall be confiscated from the winner when, after notification, he declines to sign the contract and all the legal procedures stated in these regulations shall be taken against him.
D. The final bond guarantees for the full implementation shall be at the rate of 5% of the contract price and issued by a trusted bank in Iraq. This amount will not be released until the issuance of the final approval certificate and the clearance of final accounts.
F- State and public sector companies shall be exempted from presenting preliminary and final guarantee bonds stated in this article for a period of three years starting from the effective date of these regulations. The Ministry of Planning and Development Cooperation shall re-examine this exemption after passage of this period and in coordination with the Council of Ministers/Economic Affairs Committee.
Second- Delay Fines- The maximum limit for delay fines is limited by the implementing party at a rate of 10% of the contract or tender value. The implementing party shall state this rate within the contracting provisions, the tender documents, and the regulations to the bidders. The implementing party shall take the necessary measures to speed up the completion of the work before exceeding 25% of the time allowed for the work. These measures include the formation of a committee, consisting of experienced people, to speed up the time in which the contractor shall supply the remaining works, or the work may be withdrawn in accordance with contract provisions.
The following method shall be followed when calculating the penalty:
× 10%= penalty for every day
The amount of the contract
The period of implementation
Third- Delay fines may be reduced according to the percentage of completion of contracted works as determined in the timetable of the contract. The work, supplied good or required service shall be implemented according to the qualifications stipulated in the contract terms.
Fourth- The contracted party, based upon a reasoned decision, shall impose the delay fines upon the contractor or withdraw the work from him.
Fifth- The administrative cost rate is limited and not to exceed 20% of the actual implementation cost of the concerned obligation. This rate is adopted when the contracted party takes over by itself or through another party the implementation of the contractor’s obligations. The contracted party shall state said conditions within the contracting provisions and tender documents.
Legal Effects resulting from breach of contractual obligations:
First- The following procedures shall be followed when the legal effects for the breach arise before signing the contract in case the winner refuses to sign the contract and following formal notification to sign the contract within 15 days:
A. Confiscation of preliminary guarantee bonds in case of full refusal.
B. Refer the bid to the next bidder and the bidder who refused shall bear the difference between the two bids in addition to confiscation of preliminary bonds.
C- In case the first and second contractors refuse to sign the contract and/or submit the letter of guarantee, then the contracting agency may award the tender to a third contractor and in this case the first and second contractors shall bear the difference in addition to confiscation of preliminary bonds.
D- Those breaching contractors shall be subject to the procedures stated in paragraphs (A), (B), and (C) of this item in case of breach during implementation of their bids.
Second- Legal effects arising after signing the contract:
A. Confiscation of, or keeping, final guarantee bonds.
B. Implementing the contract through a committee by a representative of the breaching party and in case of refusal then a judicial order shall be obtained from court to implement the work at his expense and taking possession of the equipment and tools for the purposes of liquidation. Delay penalties and administrative burdens at a rate of 20% of the total amount and other financial obligations shall be applied and if found after final accounts that the account is in credit, then this credit shall not be returned to the party in breach. If the breaching party’s account is found to be in debt, then compensation shall be demanded.
C- It shall be permissible for the contracting agency to assign the contract to another contractor if the first contractor breaches his contractual obligation and the breaching contractor shall bear the difference between the two bids when implementing the contract in addition to confiscation of his bonds related to best performance and the proper procedures.
The contracting parties in ministries and entities not associated with the ministry and regions and governorates not organized into a region may list those contractors that breach their contracts on a blacklist taking into account the following:
First- Listing of Iraqi contractors in the blacklist shall be made according to the regulations for registration and classification of Iraqi contractors issued by the Ministry of Planning and Development Cooperation No. 1 of 2005.
Second- Listing of contractors and consultants (non-Iraqis) based upon the mechanism stated in the regulations issued for this purpose.
Preliminary and working advances:
First- The special provisions for granting preliminary advances for contracts shall be taken into account as stated in the General Federal Budget Law and by providing special guarantees before approval.
Second- Advances shall be paid to contractors according to the progress of work, within a period not less than 30 days and in light of the general conditions of the contract terms stated in the tender documents.
Ministries and agencies that are not associated with a ministry, the regions and the governorates shall comply with the following:
First- All general public works contracts shall include obligatory rules within the contract provisions for civil, electrical, mechanical and chemical engineering work. These rules are adopted by the Ministry of Planning and Development Cooperation and are followed inside Iraq. These rules shall be considered an integral part of the contract when no wording is included in the contract.
Second-Take into consideration the provisions of the concerned valid laws related to general contracts and directions of the Ministry of Planning and Development Cooperation and regulations of the high authorities.
First- All ministers and agencies not connected to a ministry shall require all the contracting parties related to them to organize their contracting plans with the Office of Government Public Contract Policy within the Ministry of Planning and Development Cooperation and supply it with the required information.
Second-All ministries and agencies not related to a ministry shall abide by the investment budgets information issued by the Ministry of Planning and Development Cooperation or any other regulations issued by the Ministry of Finance regarding financial authorities for general contracts of the governmental directorates and the public sector, along with the mandatory power authorized to the concerned parties, when implementing the projects that are included within the state budget.
The Office of Government Public Contracts in the Ministry of Planning and Development Cooperation shall take over the following:
First- Exercising the authorities given to it in accordance with the Public Contracts Law which was issued by the CPA (dissolved) in Order No. 87-2004.
Second- Issuing regulations that organize contractual relations between the state and those who contract with it, including the consequences of a contractor's violation of its contractual duties.
Third- Issuing and amending general contract provisions and goods and services supply provisions.
Fourth- Evaluating the duties and the procedures of the Bid Opening and Bid Evaluation Committees within state agencies and changing them whenever needed.
Fifth- Answering the questions of all state offices and other contracted parties and any other cases related to its duties.
Sixth- Providing training and development to improve the skills of employees working in the contracting parties in ministries and entities not associated with the ministry, regions, and governorates not organized into a region.
Seventh- Technical supervision of the general structures of contracts in the ministries, regions, and governorates not organized into a region.
It shall be permissible to entrust companies of the Ministry of Industry and Minerals to manufacture equipments and internal materials in the work of productions for other ministries, when capable, as an exception to the provisions of these regulations.
General contracts covered by these regulations shall be subject to Iraqi laws and Iraqi law court jurisdiction according to applicable procedures.
Regulations of Implementing Government Contracts No. 1 of 2007 shall be cancelled.
These regulations shall be implemented as of the date of publication in the official gazette.
Ali Ghaleb Baban
Minister of Planning and Development Cooperation