REQUEST FOR TECHNICAL AND FINANCIAL PROPOSALS:CONSULTANCY SERVICES FOR DRAFTING THE LEGAL FRAMEWORK FOR A FUNCTIONAL COOPERATION MECHANISM IN CROSS-BORDER ENFORCEMENT BETWEEN COMESA COMPETITION COMMISSION AND THE COMPETITION COMMISSION OF MAURITIUS

CCC/RFP/09/02/2021

BACKGROUND

  1. The COMESA Competition Commission (“the Commission”) is a regional body established in terms of Article 6 of the COMESA Competition Regulations of 2004 (“the Regulations”) with the core mandate of enforcing the provisions of the Regulations with regard to trade between Member States and promoting competition within the Common Market through monitoring and investigating anti-competitive practices of undertakings within the Common Market and mediating disputes between Member States concerning anti-competitive conduct.
  2. The Regulations were enacted with the purpose of promoting and encouraging competition by preventing restrictive business practices and other restrictions that deter the efficient operation of markets, thereby enhancing the welfare of the consumers in the Common Market, and to protect consumers against offensive conduct by market actors. The Regulations are intended to apply to all economic activities conducted by private or public persons within, or having an effect within, the Common Market and which have an appreciable effect on trade between Member States and which restrict competition in the Common Market.
  3. The Republic of Mauritius is one of the 21 COMESA Member States which has been actively supporting the Commission in ensuring the effective enforcement of the Regulations within its territory and the Common Market at large. Enforcement cooperation between the Commission and the Competition Commission (Mauritius) (the ‘CC’) (together referred to as the Authorities) has, to-date, occurred principally through the CC providing informal information-gathering assistance to Commission’s investigations on notified mergers or agreements which involve parties having some form of economic or jurisdictional nexus with Mauritius. Such informal assistance eventually culminated into the signing of a Memorandum of Understanding (‘MoU’) between the Authorities in March 2017.
  4. The MoU represents an important milestone in setting out the broad and general precepts of comity, joint consultation, coordinative enforcement, and information sharing between the Authorities to the extent compatible with each authority’s competition laws without however, detailing the explicit legal basis of, nor the form, manner, and processes to be applied in pursuit of the collaboration, notwithstanding the binding nature of the provisions of the COMESA Treaty and the Regulations on the Member States.
  5. The Authorities’ collaborative experience thus far has demonstrated that notwithstanding the conclusion of an MoU and the best endeavours of the respective Authorities, real and effective enforcement cooperation is likely to face important limits. This is in circumstances when such co-operation would require activities, which are likely to be restricted under national law such as the provision of formal investigative assistance to; the exercise of statutory evidence-gathering powers on behalf of; or the exchange of confidential case information with the CCC for the purposes of its enforcement activities.
  6. Premised on the foregoing, the CC and the Commission seek to formalise and strengthen the cooperation existing between them for improved enforcement of their competition laws against regional restrictive business practices, mergers and acquisitions, and other forms of anti-competitive concerns affecting the Common Market for Eastern and Southern Africa (referred interchangeably to the ‘Common Market’ or the ‘COMESA’).
  7. The Commission is seeking to engage an International Consultant to assist the CC in putting in place the requisite legal and procedural framework underpinning a sound, effective and functional cooperation mechanism between the Authorities in cross-border enforcement, and in so doing, to assist the CC in fulfilling its obligations under the COMESA Competition Regulations, including the enforcement of the Commission’s decisions at national level pursuant to existing COMESA legal instruments, vis-à-vis the Commission in the latter’s enforcement activities. The Terms of Reference for the International Consultant which outline the Consultancy’s objectives, scope, deliverables, expected duration and conditions are hereto annexed as Annex 7.

SCOPE OF CONSULTANCY SERVICES

  1. In view of achieving the above-stated objectives, the Consultant shall:

a. map out and report to the Authorities on the procedural and substantive requirements of each Authority’s competition legislation relating to investigative/information-gathering and enforcement powers; differences in their investigative and enforcement regime applicable to restrictive business practices, mergers and acquisitions, and other forms of anti-competitive concerns; enforcement cooperation requirements; confidentiality obligations; information disclosure avenues including for sharing of confidential information in view of situating the level of convergence or otherwise divergence across the Authorities’ legal regimes and enforcement practices, which facilitate or otherwise hinder effective enforcement;

b. carry out and report to the Authorities on a literature review of:

a. cross- border enforcement cooperation provisions in enabling instruments of other regional networks such as the European Competition Network, the ASEAN, among others in conjunction with proven bilateral or multilateral mutual assistance and cooperation instruments on competition between competition authorities/jurisdictions, and

b. latest recommended best practices on cross-border, competition enforcement cooperation endorsed by authorities in competition law and policy such as the OECD, ICN, UNCTAD, among others;

c. hold consultative meeting(s) (whether in-person or virtually) with the Authorities and, where deemed relevant, with specified stakeholders in order to gather their preliminary views on the features and procedures that are intended to or otherwise ought to make up the intended enforcement cooperation framework between the Authorities;

d. draft the substantive and procedural rules embodying the requisite provisions, features, and tools in view of establishing an effective and functional enforcement cooperation mechanism between the Authorities. The Consultant’s proposal should at a minimum but without limitation address the following questions:

a. the form and manner in which the Authorities will collaborate and coordinate with one another in the conduct of the Commission’s investigation, joint, and parallel investigations;

b. the form and manner in which the CC is to render investigative assistance to, undertake investigations and use its investigative powers (pursuant to the provisions of its Competition Act 2007) on behalf of the Commission in the context of the latter’s enforcement activity;

c. more particularly, the procedural requirements and scope of inspection (entry, search and seizure) powers (with or without in-person assistance from Commission officials) across premises located within the CC’s jurisdiction, and the use and issuance of information requests (simple, informal requests for information and formal, compulsory requests for information) to persons located in Mauritius;

d. treatment of information gathered by the Authorities in the course of their investigations, including the treatment of confidential information, leniency information and settlement information, and the form and manner in which such information may be exchanged with one another (so called ‘information gateways’);

e. to ensure ensure that the proposed cooperation framework (substantive and procedural rules) has an explicit legal basis; is procedurally and legally sound to withstand legal challenges/objections from investigated parties including in judicial proceedings before competent courts in Mauritius and at COMESA level; comprehensively covers and practically implements the CC’s enforcement cooperation obligations towards the Commission in pursuance of its legal requirements under relevant COMESA legal instruments; incorporates, to the extent possible, recommended best practices/features of cross-border, competition enforcement cooperation mechanisms – as endorsed by recognized authorities in competition law and policy; and is in accordance with the provisions of the Competition Act 2007 and the CC’s own rules/practices on afore-identified principles (see Section II, point (d));

f. assess, discuss with the Authorities, and address (as the Authorities and the Consultant will deem appropriate) any comment, view, feedback received from stakeholders following round of public consultation on the draft proposal;

g. participate (whether in-person or virtually) in any validation workshop that may be organized by the CC/Authorities for the purposes of presenting and validating the final proposal in the presence of relevant stakeholders;

h. draft the Guidance Note intended to advocate the finalized procedural rules to facilitate understanding of the business community and stakeholders; and

i. draft the Internal Guide (for use by Authorities) to assist in the practical application of the proposed enforcement cooperation framework by enforcement officials of the Authorities in the course of their collaborative enforcement activities.

DELIVERABLES

  1. The following are the expected deliverables on the part of the Consultant:

a. submit an inception report to the Authorities identifying the similarities/differences across the Authorities’ competition laws on relevant aspects, which either facilitate or hinder effective enforcement cooperation between the Authorities;

b. submit a report on the literature review of the cross-border enforcement cooperation provisions in other regional networks and recommend best practices on cross-border, competition enforcement cooperation to be endorsed by the Authorities;

c. develop and make presentation(s) during (in person or virtual) consultative meetings with the Authorities and, where deemed relevant, with specified stakeholders;

d. present to the Authorities the views gathered by the Consultant from the first round of consultative meetings held with identified stakeholders on the Project proposal and to provide his/her feedback thereon;

e. prepare a first draft of the substantive and procedural rules together with relevant forms/ confidentiality waiver / information request template / any other template document, in line with the aforementioned objectives, for discussion with the Authorities;

f. to address the Authorities’ comments and finalise a first draft of the substantive and procedural rules together with relevant forms/ confidentiality waiver / information request template / any other template document for issuance to relevant stakeholders during ensuing rounds of public consultation processes;

g. prepare and submit a first draft Guidance Note and first draft Internal Guide for the Authorities’ review;

h. upon receiving comments from the various stakeholders during the public consultation process, prepare and submit a report to the Authorities containing stakeholder responses, the Consultant’s counterviews, and any proposed amendment / addition to Consultant’s initial draft in view of addressing comments;

i. prepare and submit final substantive and procedural rules (together with relevant forms/confidentiality waiver template/ information request template / any other template document) based on determinations made by the Authorities out of the comments received from the consultation process. At this stage, a final version of the Guidance Note and of the Internal Guide should also be submitted to the Authorities;

j. present (whether in person or virtually) to local stakeholders the final substantive and procedural rules during the validation workshop to be organized by the CC/Authorities; and

k. submit final procedural rules (together with relevant forms/ confidentiality waiver template/ information request template / any other template document) and Guidance Note to the CC[1] for publication/ prescription/ gazetting purposes together with the final Internal Guide for enforcement officials of the Authorities.

[1] For the avoidance of doubt, the procedural rules are to be gazette in Mauritius.

EXPERIENCE AND QUALIFICATIONS

  1. The Commission wishes to obtain the services of a firm or individual Consultant with the requisite legal and legislative drafting skills and experience in competition and consumer protection law to assist with the drafting of the required substantive rules and procedures to be gazetted in Mauritius. Proof of having undertaken similar assignments is critical.

SUPERVISION AND PAYMENTS

  1. The Consultant will report to the Director of the Commission.
    Bidders are advised to indicate their payment terms and conditions.
    Pricing
  2. All prices MUST be indicated in USD.
  3. There will be a no price variation contract after signing of contract except upon a mutual written agreement between the Commission and the successful bidder.
  4. The price quoted shall be considered to be for all the services required by the Commission as contained in this Request for Proposal.
  5. Prices must be exclusive of all taxes within Malawi and Mauritius.

CRITERIA FOR EVALUATION OF BIDS

  1. Bidders must provide both Technical and Financial proposals. The evaluation shall be based on the following attributes:

a. The overall responsiveness and quality of the proposal clearly stating an understanding of the work to be performed;

b. Technical ability of the proposer to perform the required services;

c. The experience and reputation of the proposer as represented in the response and the quality of references;

d. Cost of services. Fees and expenses will be particularly important factor when all other evaluation criteria are relatively equal.
The technical proposal will be assigned a weight of 80% and the financial proposal will be weighted at 20%.
The proposed team should consist of a minimum of three Experts [ with the requisite legal and legislative drafting skills and experience in competition and consumer protection law to assist with the drafting of the required substantive rules

Evaluation Attribute Percentage Points
Firm’s understanding of the Commission’s requirements 15
Approach and methodology 30
Specific Experience in carrying out similar assignments.

Evidence in the form of reference letters, offer letters,

orders or copies of contracts should be presented

30
Qualifications and Experience of proposed team:

Team Leader – 15

Support Experts – 10

25
Total 100
  1. A proposal shall be considered unsuitable and shall be rejected at the technical stage if it does not respond to important aspects of the Terms of Reference and/or it fails to achieve a minimum technical score of 70%.

Financial Proposal – Standard Bidding Form

  1. Bidders are advised to use the standard tender Form below as a sample format and modify it to cover all relevant costs or charges.
    There will be no price variation tender.
    Bidders are advised to disclose any other relevant information on a separate sheet of paper.

Amendments of Proposal documents

  1. At any time prior to the deadline for submission of Bids, the Commission may, for any reason, modify the Proposal Documents by issuing an addendum.

BID SUBMISSION

  1. Bidders are advised to include in their bids the following standard tender Forms attached to this tender document and marked Annexes 1-6:

a. Bid Submission Sheet;

b. Bidder’s references;

c. Comments and suggestions on the Scope of Work;

d. Description of the methodology for performing the assignment;

e. Team Composition and Tasks assignment; and

Proposed fees.

  1. The proposals must be submitted with a covering letter containing a confirmation and a description of how you have understood the Terms of Reference for the assignment. The bidders should also confirm and provide evidence that:

a. they have the legal capacity to enter into the contract

b. they are not insolvent, in receivership, bankrupt or being wound up. Their business activities have not been suspended, and they are not the subject of legal proceedings for any of the foregoing;

c. they have fulfilled their obligations to pay taxes and social security contributions, and for that purpose, documentary evidence to be provided by the relevant authorities to demonstrate that the bidders have met their obligations;

d. that their servants, or agents have not offered any inducement to any employees of the Commission.

Cost of Tender

  1. The Bidder shall bear all costs associated with the preparation and submission of the bid. The Commission will in no case be responsible or liable for those costs, regardless of the conduct and outcome of the tender.

Cancellation of the Tender

  1. In the event of cancellation of the tender, bidders will be notified in writing of the cancellation by the Commission and informed of the reasons for cancellation.

Ownership of Tenders

  1. The Commission retains ownership of all tenders received under this Request for Bids. Consequently, bidders have no right to have their tenders returned to them.

Negotiation and Finalization

  1. After the selection of the best bid and notification to the selected party, the Commission will commence negotiations with that party for purposes of concluding an agreement.

Award of Contract

  1. Prior to expiration of the period of bid validity, the Procurement Committee will award the contract to the qualified Bidder whose Bid after being evaluated is considered to be the most responsive to the needs of the organization and activity concerned.The Commission reserves the right to wholly or partially reject or award the contract to any bidder and has no obligation to award this tender to the highest ranked bidder.The Commission also reserves the right to annul the Bid process and reject all Bids at any time prior to award of contract, without thereby incurring any liability to the affected Bidder(s).

Signing of the Contract

  1. Within 14 days of receipt of the contract the successful Bidder shall sign and date the contract and return it to the Commission.

Period of execution

  1. The period of execution of the contract starts from the date of the signing of the contract and is estimated to take thirty-two (32) weeks from date of contract signing by the last party.

Confidentiality

  1. Information relating to evaluation of bids and recommendations concerning awards, shall NOT be disclosed to the Bidders who submitted the bids or to other persons not officially concerned with the process, until the winning firm has been notified that it has been awarded the contract.

Corrupt or Fraudulent Practices

  1. The Commission requires that Bidders observe the highest standard of ethics during the procurement and executions of contracts.
  2. For the purposes of this provision, COMESA defines the terms set forth below as follows:
  1. “corrupt practice” means the offering, giving, receiving or soliciting of anything of value to influence the action of a public official in the procurement process or in contract execution: and
  2. “fraudulent practice” means a misrepresentation of facts in order to influence a procurement process or the execution of a contract to the detriment of the COMESA, and includes collusive practice among Bidders (prior to or after bid submission) designed to establish bid prices at artificial non-competitive levels and to deprive COMESA of the benefits of free and open competition.

FORMAT AND SEALING OF BIDS

  1. The bidder shall submit the proposal in one envelope containing two sealed envelopes by the closing date set forth below through courier services or hand delivery to the following address.

Chairperson – Procurement Committee,
COMESA Competition Commission,
5th Floor-West Wing, Kang’ombe House
P.O. Box 30742
Lilongwe 3, Malawi
Attention: Procurement Unit

  1. An electronic copy of the proposal shall be submitted by the closing date to the following email address: compcom@comesa.int
  2. The outer envelope should be clearly marked at the top right-hand corner [TENDER REFERENCE AND TITLE].
  3. The first internal sealed envelope shall be clearly marked “Technical Proposal” and must contain two (2) hard copies of the technical proposal with one marked ‘original’ and the other marked ‘copy’. The second internal envelope shall be marked “Financial Proposal” and must contain two hard copies of the financial proposal with one marked ‘original’ and the other marked ‘copy’. In the event of any discrepancy between the original and the copy, the original shall govern.
  4. NOTE: If the envelopes are not sealed and marked as per the instructions in this clause, the Commission will not assume responsibility for the proposal’s misplacement or premature opening and may – at its discretion – reject the proposal.

Deadline for Submission of Proposals

  1. The deadline for the submission of proposals is 13h30 Malawi Time on TUESDAY, 21st September 2021. Bidders or their authorised representative are invited to attend the virtual opening of bids scheduled to be held on TUESDAY, 21st September at 15h30 Malawi Time.
  2. The Commission does not bind itself to accept any bid and reserves the right to accept the whole or part of any of the submitted bids.

TECHNICAL QUERIES

  1. For any technical queries related to specifications of work or Terms of Reference, kindly contact Ms. Stellah Onyancha Manager, Enforcement and Exemptions on the following email address:sonyancha@comesa.int .

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