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:

observes the agreed baseline schedule or any approved revisions thereof;
uses the proper resources which he had included in his tender and Resource Plan;
refrains from making and claiming liquidated damages for expenses that are not provisioned in the contract and not covered by the Project budget;
observes the agreed Quality Plan and performs the proper quality controls of his deliverables that are specified in it;
applies the procedures provisioned in the Issue Management Plan to settle issues arising during the execution of the contract;
sees to the observance of the Change Management Plan and the enforcement of the applicable procedures in each case;
enforces the procedures provisioned in the Risk Management Plan to identify, assess and handle the risks that may appear during the execution of the contract;
implements the provisioned communications based on the Communication Plan and submits the Progress Reports provisioned in the contract;

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  614:  Contractors Performance Evaluation Criteria in a supply contract

Timely delivery
Response of the products to the quantitative and qualitative requirements described in the contract
Delivery services (transportation, packaging) - Suitability and adequacy of technical means of support
Cooperation with Contracting Authority
Provision of certificates
Submission of documented request for extension of contractual time
Breach of other terms of the Contract by the Contractor

 

Table 615:   Contractors Performance Evaluation Criteria in a service contract

Quality of deliverables (e.g., completeness, practicality, clarity, expandability, user friendly, parameterising) or service rendered (e.g., reliability, functionality, safety, environmentally friendly, end user satisfaction, timely provision, etc.)
Organisation and function of project team - Staff suitability, adequacy and behaviour
Cooperation and communication with Contracting Authority and the other stakeholders
Effectiveness in Project management
Planning and achievement of time goals
Suitability and adequacy of technical means of support
Submission of documented request for time extension
Breach of other terms of the Contract by the Contractor

 

Table  616: Contractors Performance Evaluation Criteria in a public works contract

Quality of materials based on laboratory testing and measurements of the technical specifications of the contract
Response of Contractor to the Engineer's and supervisors' written instructions
Response/ compliance of the Contractor to the provisions of the contract regarding the management of safety issues for the personnel and passers by/ visitors
Timely completion of the contract
Organisation and planning
Suitability and adequacy of personnel
Suitability and adequacy of mechanical equipment
Cooperation and coordination with subcontractors
Submission of documented requests for time extension and observance of deadlines when submitting claims with respect to the terms of the contract.
Submission of documented and non exaggerated claims for liquidated damages
Submission of provisional and final statement based on the terms of the contract (time and completeness of information)
Breach of other terms of the contract by the Contractor

 

Table  617:  Contractors Performance Evaluation Criteria in an Engineering Consulting Services contract

Completeness, compatibility with legislation and relevant standards, applicability/ feasibility, precision and correctness of design elements
Response/ compliance of Contractor with Engineer's written instructions
Timely completion of the contract
Organisation and planning
Suitability and adequacy of personnel
Suitability and adequacy of office equipment
Cooperation and coordination with the Services
Submission of documented requests for time extension and observance of deadlines when submitting the claims
Submission of documented and non exaggerated claims for liquidated damages
Breach of other terms of the contract by the Contractor

 

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.

Blacklisting (Forfeiture of the right to participate in tenders leading to award of contract)

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:

1.The Contracting Authority submits the evaluation report to the President of the Central Committee for Variations and Claims proposing the blacklisting of the specific Contractor from future tenders;
2.The President of the Central Committee notifies to the Contractor the request of the Contracting Authority and invites him to submit, if he so desires, an objection against the request for sanction. The objection of the Contractor must be made in writing, mention the grounds of the objection and it must be submitted to the President of the Central Committee within a specific period of time.
3.The Central Committee may, if it deems expedient, invite the competent representative of the Contractor or/ and his legal counsel for an audience in which he will present the reasons for the objection.
4.The final ruling regarding the blacklisting or not of the Contractor from future tenders is made by the Central Committee, which also specifies the period of time for which the sanction will be imposed
5.The ruling of the Central Committee is notified to the Auiditor General of the Republic, the Public Procurement Directorate and all of the Contracting Authorities and Tender Boards.

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.


© 2007 Republic of Cyprus, Treasury of the Republic, Public Procurement Directorate
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