This practice note provides precise guidelines for institutions dealing with unsolicited proposals/concepts. An unsolicited proposal/concept means any proposal/concept received by an institution outside its normal procurement process that is not an unsolicited bid (a submission that must be innovative, unique and provided by a sole supplier).
1.2 This practice note defines the parameters of an unsolicited proposal/concept, provides a mechanism for their deliberated consideration and establishes consistency in approach both by government and the private sector.
1.3 This practice note has been drafted in order to provide government with a framework within which unsolicited proposals/concepts may be considered. It explains how unsolicited proposals/concepts should be dealt with by institutions through setting out procedures that must be followed. These procedures will result in an environment where advantage can be taken of the private sector's capacity to conceptualise, package and develop projects whilst ensuring and protecting public policy objectives at the same time.
the product or service presents a new and cost-effective method of service delivery.
a declaration from the proponent to the effect that the offering of the unsolicited proposal was not as a result of any non-public information obtained from officials of the relevant institution or any other institution.
the period of time for which the proposal is valid for consideration, which may not be less than six months.
has not been submitted by a duly authorised representative of the proponent; or contravenes the provisions of any law.
notify the authorised representative of the proponent by registered post, at the address referred to in paragraph 2.
ensure that the institution does not make use of any of the intellectual property or proprietary data in the unsolicited proposal; and return to the proponent by registered mail to the address referred to in paragraph 2.2 (a), all documents received in the unsolicited proposal including any copies of these documents.
4.1 If the accounting officer or accounting authority decides to consider the unsolicited proposal, he or she must send a registered letter to the address referred to in paragraph 2.2 (a) confirming the decision to consider the unsolicited proposal.
Compliant unsolicited bid.
4.2.1.1 If a submission to an institution complies with the requirement of existing unsolicited bid provisions in terms of the National Treasury issued circular entitled "Implementation of Supply Chain Management" (dated 27 October 2004), namely the product or service is unique, innovative and provided by a sole provider, the institution may enter into direct negotiation with the proponent, outside the normal competitive bidding process.
Public Private Partnership compliant unsolicited proposal.
4.2.2.1 If the unsolicited proposal is a PPP, the accounting officer or accounting authority must comply with the requirements of Treasury Regulation 16 and the Practice notes relevant thereto, as read with paragraph 5.1 of this practice note.
Non-Public Private Partnership compliant unsolicited proposals.
an assessment of whether the proposed cost of the project is realistic, affordable and justified; and any other fact which, in the opinion of the institution is relevant to the particular unsolicited proposal.
If at the conclusion of the feasibility study the institution determines that the criteria set out in paragraph 2 are met, the institution must proceed with the processes to develop and execute an unsolicited bid agreement as set out in paragraph 4.2.4 below.
If the institution determines that the criteria set out in paragraph 2 are not met, the institution must follow the procedures set out in paragraph 3.2 above.
Unsolicited proposal agreement.
4.2.4.1 If the institution decides to proceed with the unsolicited proposal, the accounting officer or accounting authority must negotiate an unsolicited proposal agreement with the proponent.
the purchase of intellectual property rights, if any.
Calculation of costs.
4.2.5.1 In calculating costs for the purposes of paragraph 4.2.4.1 (a), the institution and the proponent must restrict their consideration to direct costs incurred by the proponent in developing technical and other materials relevant to meeting the criteria set out in paragraph 2, above.
the institution may not implement the project proposed in the unsolicited proposal for the current or next financial year and may not utilise at any time the proprietary information provided by the proponent as part of its unsolicited proposal.
If the unsolicited proposal agreement is concluded, then the institution must prepare and issue bid documents.
5.1 Bid process.
Reimbursing the proponent should the proponent not be awarded the contract for the provision of the product or service at the conclusion of the competitive bidding process. The quantum of reimbursement shall be those audited costs of the proponent from the point in time where the accounting officer or accounting authority was solicited by the proponent to the conclusion of the competitive process, in terms of the unsolicited proposal agreement.
provide the agreed costs and terms of payment to the proponent, and require that all bidders, save for the proponent, make allowance for these costs and pay such costs to the proponent directly, if their bid is successful.
an appropriate undertaking be obtained from any such person that any confidential material or information provided by the proponent will not be disclosed to anyone other than an employee or agent of such a third party who will, in turn, treat the information or material as confidential and give an undertaking to do so; and the cost of obtaining independent advice will be incurred by the institution, unless the proponent withdraws the proposal prior to entering into an unsolicited proposal agreement, in which event the proponent will be liable to the institution for these costs.
use any data, concept, idea, or other part of a unsolicited proposal as the basis or part of the basis, for a solicitation or in negotiations with any other firm unless the project proceeds to procurement in terms of paragraph 5 and the proponent is notified of and agrees to the intended use; provided that, this prohibition does not preclude the use of any data, concept or idea in the proposal that also is, or becomes, available from another source without restriction; or disclose information identified in the unsolicited proposal agreement as confidential.
8.1 All unsolicited bids which have been submitted to an institution prior to publication of this practice note and not yet concluded must be considered under the institution's supply chain management system.
8.2 All unsolicited proposals submitted to an institution before publication of this practice note and for which an unsolicited proposal has not yet been concluded must be considered under this practice note, together with such provisions of the institution's Supply Chain Management Policy that are not inconsistent herewith.
8.3 All unsolicited proposals submitted to an institution after publication of this practice note must be considered under this practice note, together with such provisions of the institution's Supply Chain Management Policy that are not inconsistent herewith.
9.1 This practice note shall take effect and become applicable to institutions on the date of issuance subject to any exemptions that may be granted in terms of section 92 of the PFMA.
10.1 Should accounting officers or accounting authorities have any enquiries regarding implementation of this practice note, such enquiries may be directed to the persons mentioned below.
10.2 Enquiries relating to Public Private Partnership compliant unsolicited proposals as defined in paragraph 4.2.
Facsimile number: 012 315 5477 10.3 Enquiries relating to compliant unsolicited bids as defined in paragraph 4.2.1 and Non-Public Private Partnership compliant unsolicited proposal as defined in paragraph 4.2.
Facsimile number: 012 315 5343 11.
11.1 Head Officials of Provincial Treasuries are requested to bring the contents of this practice note to the attention of accounting officers of their respective provincial departments.
11.2 Accounting officers of national and provincial departments are requested to bring the contents of this practice note to the attention of accounting authorities of Schedule 3A, 3B, 3C and 3D public entitles reporting to their respective executive authorities.
12.1 Upon receipt of an unsolicited proposal, institutions must (in writing) notify the relevant National Treasury contact person within ten working days of such receipt.
13.1 Accounting officers and accounting authorities must report all concluded unsolicited proposal agreements in the annual report of their respective institutions.
13.2 The Auditor-General may audit such agreements.
14.1 All institutions must submit a copy of a concluded unsolicited proposal contract to the Office Auditor-General.
15.1 This practice note is issued in terms of section 76 of the PFMA.