Public procurement regulation in Singapore

Introduction: Singapore’s legislative framework regulating the award of public procurement contracts:

The key legislation which governs public procurement in Singapore is the Government Procurement Act 1997 (the “Act”) (Government Procurement Act 1997 - Singapore Statutes Online (agc.gov.sg), which includes the following subsidiary legislation (collectively, the Procurement Legislation):

• the Government Procurement (Application) Order (Government Procurement (Application) Order - Singapore Statutes Online (agc.gov.sg)) (the “Order”), which sets out the contracting authorities, procurement types and contract threshold values for an overseas procurement to be subject to the Act;
• the Government Procurement Regulations 2014 (Government Procurement Regulations 2014 - Singapore Statutes Online (agc.gov.sg)) (the “Regulations”), which specifies the necessary principles and procedures of the procurement process;
• the Government Procurement (Challenge Proceedings) Regulations (Government Procurement (Challenge Proceedings) Regulations - Singapore Statutes Online (agc.gov.sg)) (the “Challenge Proceedings Regulations”), which outline the procedure for the Government Procurement Adjudication Tribunal to hear and determine challenges brought by a bidder whose owed duty was breached.

Building upon Singapore’s Procurement Legislation, the Singapore Ministry of Finance issues central procurement guidelines on the Government Electronic Business online portal (“GeBIZ”), covering participation, registration, bidder debarment and other facets of the public procurement process. Although these guides do not have the force of law, they provide bidders with valuable insight into the procedural process in public procurement. Other legislation relevant to public procurement in Singapore are the Competition Act 2004, which regulates competitive behaviour in the market; the Prevention of Corruption Act 1960, which regulates corruption and bribery; the Official Secrets Act 1935, which regulates the disclosure of official and confidential documents and information; and the Penal Code 1871, which captures the general principles of Singapore’s criminal law.

1. Where can one find public procurement notifications?

Public procurement notifications, which include procurement contracts, invitations to quote or tender, and notices of award of contracts, can be found on the GeBIZ (GeBIZ | Home) or in the Government Gazette (Notices (egazette.com.sg).

The Order sets out the contracting authorities, procurement types and contract threshold values for an overseas procurement to be subject to the Act.

Under the Order, a procurement contract is subject to the Act once it crosses a certain contract threshold value. Generally, the contract threshold value (which may be denominated in Singapore Dollars or Special Drawing Rights) varies, depending on:

• the identification of the relevant contracting authority (in Singapore);
• the goods and services related to the relevant procurement; and
• the state to which the relevant procurement relates (i.e. the relevant Protocol State)

Part II of the First Schedule of the Order sets out the 20 relevant Protocol States, which are as follows:

• Canada
• European Union
• Hong Kong Special Administrative Region of the People’s Republic of China
• Liechtenstein
• Norway
• United States of America
• The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu (“Chinese Taipei”)
• Iceland
• Israel
• Netherlands (with respect to Aruba) 
• Armenia
• Montenegro
• Japan
• New Zealand
• Republic of Korea
• Ukraine
• Republic of Moldova
• Australia
• Switzerland
• United Kingdom

Parts I, II, IIA, IIB, IIC, and III of the Second Schedule of the Order sets out the different categories of the relevant contracting authorities.

Save for the Sixth and Seventh Schedule, the Third to Eleventh Schedule of the Order sets out the goods and/or services the procurement of which is subject to Singapore’s Procurement Legislation.

Subject to exceptions, the general contract threshold values for a procurement to be subject to the Act are summarised as follows:

Generally, regulation 23 of the Regulations requires a procurement subject to the Act to be conducted via open tendering, where tender notices are posted openly on the GeBIZ for interested bidders to respond; or selective tendering, where only shortlisted or qualified bidders are invited to submit a tender.

A contracting authority may also use limited tendering for procurement, where the contracting authority contacts bidders of its choice “by invitation” to submit a tender. Limited tendering may only be used under specific circumstances as specified in regulation 26 of the Regulations, which include:

• when open tendering or selective tendering was used but no tender was received;
• when the tenders were received but were collusive or not in compliance with the tender documentation;
• when the goods and services to be procured have no substitutes;
• when the goods are on a commodity market; and when the procurement concerns national security.

In any event, limited tendering must not be carried out with a view to avoiding competition or protecting bidders established in Singapore or otherwise in a manner that is discriminatory against any bidder.

Under regulation 25 of the Regulations, a contracting authority may conduct negotiations with any bidder for procurement, provided that the contracting authority has indicated its intent to conduct negotiations in its notice of intended procurement published on the GeBIZ or if it appears to the contracting authority that no one tender is obviously the most advantageous in terms of the evaluation criteria set out in the notice of intended procurement or tender documentation.

In such event, the contracting authority must:

• ensure that any elimination of bidders from participating in the negotiations is carried out in accordance with the evaluation criteria set out in the notice of intended procurement or tender documentation; and
• when negotiations are concluded, provide a common deadline for the remaining participating bidders to submit any new or revised tenders.

Under the Act, an aggrieved bidder can bring a motion to review a contracting authority’s alleged breaches of the Regulations before the Government Procurement Adjudication Tribunal (the “Tribunal”), including the contracting authority’s decision in awarding a procurement contract (see section 7(3) of the Act).

Under section 15 of the Act, a bidder that wishes to bring a motion before the Tribunal to review the contracting authority’s decision must, within 15 days of the date the facts constituting the basis of the challenge first took place, lodge a notice of challenge with the Tribunal, serve a copy of the notice of challenge on the contracting authority undertaking the procurement that is the subject of the challenge, and pay a fee of S$500 and a deposit of S$5,000.

The time limited to bring a challenge before the Tribunal must be strictly complied with, failing which the challenge shall be declared invalid, unless the Tribunal is satisfied that there has been no unreasonable delay on the part of the applicant (see section 15(2)(f) of the Act).

Section 7(3) of the Act expressly provides that a challenge against an alleged breach of the Regulations is not to be the subject of any proceedings in any court. The Act also does not provide for appeals against the determination of the Tribunal. In contrast, section 20(3) of the Act provides that a contracting authority is not precluded from seeking judicial review of a determination or order of the Tribunal before the Singapore courts in the situation where an order or determination is made against the contracting authority.

Singapore’s Procurement Legislation does not provide for a standstill period between the notification of the contract award decision and the conclusion of the contract.

However, a contracting authority is required to publish a notice containing information on the awarded contract on the GeBIZ no later than 72 days after the date of the award of the procurement contract (see regulation 30 of the Regulations).

In addition, a contracting authority must, as soon as possible after the award of the procurement contract using open tendering or selective tendering, inform all bidders who had participated in the procedure of its decision on the award (see section 31 of the Act).

The Tribunal is established under section 8(1) of the Act to hear and issue determinations on challenges brought by bidders under section 7(3) of the Act. The Tribunal comprises of a Commissioner and/or Deputy Commissioners, whom are appointed by the Minister for a period of 2 years and are eligible for re-appointment.

A bidder that wishes to bring a challenge before the Tribunal to review the contracting authority’s decision must pay a fee of S$500 and a deposit of S$5,000 (see regulation 2 and 3 of the Challenge Proceedings Regulations).

A challenge brought under the Act does not have an automatic suspensive effect on the procurement procedure.

However, an applicant who has lodged a notice of challenge may apply to the Tribunal for an order to suspend, pending the determination of the challenge, the procedure leading to the award of the contract for the procurement that is the subject of the challenge; or the implementation of any decision made while undertaking the said procedure (see section 16(1) of the Act).

The Tribunal may refuse to make the order, make the order unconditionally or impose terms and conditions upon making the order. If it refuses, it must give a written explanation of its reasons for refusal. Generally, it will not make an order of suspension if it is against public interest or if the procurement contract has already been awarded at the date of hearing of the application for the order (see section 16(2) – (4) of the Act).

Under Singapore’s Procurement Legislation, there is no mechanism to automatically render a public procurement/awarded procurement contract ineffective. 

However, upon a bidder’s challenge, if the Tribunal issues a determination in favour of an applicant, it may (see section 18(3) of the Act):

• order any decision or action taken by the contracting authority concerned in relation to the procurement that is the subject of the challenge to be set aside; 
• order the contracting authority to make a decision or take action in accordance with the Regulations in place of the decision which has been set aside;
• order the contracting authority to amend any document pertaining to the procurement; and/or 
• order the contracting authority to pay to the applicant the costs of participation in the qualification of bidders, or the costs of tender preparation, reasonably incurred by the applicant for the purposes of the procurement.

The Singapore Procurement Legislation does not contain provisions specifically dealing with the procedure for amendments to concluded procurement contracts, except that a contracting authority may not modify awarded contracts in a manner that circumvents the obligations under the Regulations (see regulation 29(6) of the Regulations).

However, prior to the award of a procurement contract, the Regulations provide for procedures relating to amendments to tender documentation. Where such amendments are made, the contracting authority is required to reissue these amendments to all participating bidders at the time of the amendments (where the bidders are known to the contracting authority) and in all other cases, in the same manner by which the original information was made available (e.g. via the GeBIZ). This must be done in adequate time to allow the relevant bidders to modify and resubmit amended tenders as appropriate (See regulation 20 of the Regulations).

Generally, it is mandatory for a contracting authority to use the GeBIZ for all procurement, with the exception of procurement by limited tendering (see regulation 10 of the Regulations).