6.6.1 Evaluation of the Contractor’s performance
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Throughout the duration of execution of the contract the Project Manager (or the Engineer) must monitor and control the Contractor's performance, that is, whether the Contractor is executing his works based on the terms of the contract and Plans that were developed and agreed upon with the Contracting Authority during the planning phase of the Project.
More specifically, the Project Manager (or the Engineer), in order to evaluate the Contractor's performance, must check that the Contractor:
Though the Contractor's performance evaluation is an ongoing process, which takes place throughout the duration of the contract, it is recommended that a Contractor's Performance Evaluation Report is drafted once all of the contractual obligations of the latter have been completed so that the Contracting Authority have gained a more complete picture that will help it in formulating a more objective judgement. This Report may be prepared for all contracts irrespective of value or only for those with value above a limit, as well as it may be drafted only by the Project Manager (or the Engineer) or by a competent Committee based on what is provisioned in the Regulations which every Contracting Authority is required to apply9 [ It is pointed out that the Contracting Authorities obeying the K.D.P. 115/2004 (i.e. Ministries or Departments or Services that come under them or Independent Offices or Independent Services of the Republic of Cyprus), are required to prepare a Contractor’s Performance Evaluation Report for the public work contracts and supply contracts valued beyond ₤100,000 each and for service contracts irrespective of value. The Evaluation Report is prepared by the competent Committee appointed by the Director of the Contracting Authority and drafted upon the acceptance of the works, supplies or services. The Report is notified to the Public Procurement Directorate and Auditor General of the Republic. ].
This Report includes the presentation of the results of the Contractor's evaluation against specific criteria which reflect his compliance with the terms and requirements of the contract. The Tables below present the basic criteria for the performance evaluation of the Contractor in the cases of supply contracts, general services contracts, engineering consulting services contracts and public work contracts. Templates of the Performance Evaluation Reports for a Contractor of a supply contract, service contract, public works contract and engineering consulting services contract are given in Annexes 6-2, 6-3, 6-4, and 6-510 [ The template of the Reports of the Annexes 6-4 and 6-5 are the respective Annexes II and III of the Circular 1593/2005 issued by the Central Committee for Variations and Claims. The template of Reports of the Annexes 6-2 and 6-3 were prepared in respect of the aforementioned for the purposes of this Guide. ] respectively.
Table 6–14: Contractor’s Performance Evaluation Criteria in a supply contract
Table 6–15: Contractor’s Performance Evaluation Criteria in a service contract
Table 6–16: Contractor’s Performance Evaluation Criteria in a public works contract
Table 6–17: Contractor’s Performance Evaluation Criteria in an Engineering Consulting Services contract
Irrespective of the Contractor Performance Evaluation Report that is prepared upon the closure of the contract, the Contracting Authority must prepare a special report in every case where an omission or failure of the Contractor to fulfil his contractual obligations is ascertained. This report must be sent to the Public Procurement Directorate and notified to the General Director of the Ministry of Finance. Parallel to this information, the Contracting Authority must immediately proceed with the forfeiture of the Performance Guarantee11 [ In a case where the ascertained damage incurred to the state exceeds the amount of the above mentioned guarantee (by an amount greater than the one specified by the Public Procurement Directorate in its circular), the Contractor is called upon to cover the damage incurred by the state within a set deadline. In a case where the Contractor omits to respond to the claim submitted to him until the set deadline, the issue is referred to the General Attorney of the Republic to initiate judicial or other measures against him. ].
It is noted that in certain countries, like for example the United Kingdom, the Contracting Authorities are employing the technique of benchmarking to compare between different contractors with a view to continuously maintaining the best value for money, ensuring better performance and improving the existing business practices. Benchmarking comprises the marking of the Contractor's performance in relation with the best performance of respective contractors in the sector, comparing between similar procedures or/ and prices for the provision of similar services. The results of such an evaluation may be used by Contracting Authorities to facilitate them in their selection of the candidate contractors in the case of tenders conducted by the "Simplified Procedure" or by the "Nagotiated Procedure without publication of contract notice." However, it is noted that, benchmarking provides an indication of the level of performance and must not be used to extract absolute conclusions that will have as a consequence the restriction of competition and violation of the principle of non discrimination.
Pursuant to what is provisioned in the K.D.P. 115/2005 (Regulation 25), when based on the Evaluation Report the performance of the Contractor is deemed as non satisfactory, the Contracting Authority must propose the blacklisting of the specific Contractor from participation in future tenders leading to award of contract. This blacklisting may be either permanent or for a specific period of time.
The procedure which is followed from the completion of the Contractor's evaluation to the imposition of the sanction is the following:
The Public Procurement Directorate must maintain and update a list with all the names of the economic operators which have been blacklisted from participating in a tender. This list shall be published once a year in the Official Gazette of the Republic and at least in two domestic newspapers.
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