The new Public Procurement Law (PPL) prepared by the Procurement Unit (PU) of ARDS and enacted in October 2005 has considerably improved the legal basis for public procurement. Considering the need for reforms, the new law is certainly to be considered a major achievement. A proposed amendment to the PPL recently has been referred to Parliament after approval by the Cabinet extending the timeframe where interim procurement arrangements shall apply.11
However, it is recommended that the following shortcomings be addressed in future amendments.
The new PPL lacks the necessary foundation of a comprehensive policy on consultants’ procurement (see previous section);
The PPL lacks a well-defined and user-friendly chapter on consultants’ selection;
The Dari language version PPL that was approved is reported to be inconsistent with the original English version from which it was translated.
Rules of Procedure for Public Procurement
The PPL’s complexity and its lack of a chapter devoted to consultants’ procurement will make it difficult to apply under the present situation in Afghanistan. Therefore, regulations or rules of procedure on procurement compliant with international best practice and addressing the needs of both the GoA and the domestic consulting sector are fundamental for effectively implementing the PPL. In accordance with Art. 106(1) PPL the Procurement Policy Unit (PPU) developed Rules of Procedure for Public Procurement in Afghanistan which became effective on April 12, 2007.12 These procurement rules (PR) provide sound guidance through the process of consultants’ selection and contain appropriate provisions on enforcing transparency, fair competition and the administrative review of procurement proceedings.13 However, since the consulting firm responsible for implementing the PRP will no longer provide support to the PPU in improving the PR,14 some of the remaining shortcomings of the PR are summarized here.
User-friendly Chapter on Consultants’ Selection: The PR lack user-friendly provisions on the selection of consultants that will allow the PA to apply the national law on procurement correctly. While the PR distinguish between non-consultancy services and consultants’ services they do not provide clear guidance on these two procedures. Several provisions concerning the selection of consultants can be found only when referring to other chapters of the procurement rules.15
Definition of Consultants and Mixed Shortlists: The PR neither define the term consultants16 nor do they mandate that the shortlist shall only comprise consultants of the same category, similar capacity, and business objectives. Thus, a management consulting firm might find itself in the position that it has to compete against a non-profit organization. If a mixed shortlist is unavoidable under the circumstances, QBS instead of QCBS should be applicable. In addition, the PR should define the terms professional and expert consultants.
Simplified Technical Proposals (STP): The PR provide for Quality- and Cost-Based Selection (QCBS), Quality-Based Selection (QBS), Fixed-Budget Selection (FBS), Least-Cost Selection (LCS)17 and Single-Source Selection (SSS)18 but lack specific rules for small assignments designed to attract the attention of local consultancies. Presently even for small assignments standard procedures apply while simplified procedures could be a major incentive for increased participation of evolving Afghan consultancies. Considering the widespread corruption stakeholders do not advocate the use of Selection Based on the Consultants’ Qualification (CQS). However, an alternative solution would be the use of Simplified Technical Proposals (STP) for routine assignments with insignificant downstream impacts.19 Considering the limited capacity of domestic procurement staff and the local consulting sector discussed below,20 the use of STPs could help to (1) improve the selection of consultants; and (2) encourage participation of local consulting firms.
Quality-Based Selection (QBS): QBS should be made mandatory for complex and specialized assignments with high downstream effects, and assignments that can be carried out in substantially different ways. Currently, Article 84 (4) PR only states that QBS may be used for these types of assignments, thus leaving room for the inappropriate use of QCBS.
Continuation of Consulting Assignments: The PR lack a provision for awarding a consultant an assignment that is a continuation of the initial contract subject to its satisfactory performance in the previous assignment.
Disclosure of Staff Months or Estimated Costs: According to best practice the RFP should disclose either the estimated staff months or the cost estimate (not both) whenever available to allow for comparable proposals.
Weight Allocated to Price under QCBS: The weight allocated to price under QCBS should be addressed within the PR.
Indicative Weights for Evaluation Criteria: The PR should provide for indicative weights to be used for the evaluation criteria. It is recommended to add them to the evaluation criteria defined in Article 96(3) PR.
Recommendations to Improve the Legal and Regulatory Framework
While a revision of the PPL would depend on the policy on consultants to be elaborated in the medium-term, the GoA should consider adjusting the PR by addressing the eight shortcomings just listed. As originally foreseen, the consultants implementing the PRP could provide advice on the revision of the PR.
