06.08 Exceptions to competitive tendering or formal methods of solicitation

In exceptional circumstances, open competition—or competition of any kind—may not be feasible, and a waiver or limitation of competition may be applicable.

Limitation in scope

As competition is the basis of fair and transparent procurement, all competitive processes shall be open to all qualified suppliers wishing to participate, unless it can be clearly established that limiting the pool of potential suppliers will be in the best interests of UNAIDS. If that is the case, the limitation in scope must receive specific prior approval from the Procurement Coordinator in HQ. 

Waivers of competitive bidding

Competition may be waived only if justified under the circumstances described in the table below.

Circumstance   Applicable when
 Prices and rates are officially fixed Prices or rates are fixed by:
  • national legislation or by regulatory bodies 
  • an officially recognized monopoly 
  • requirements involving a proprietary service or product.
 Standardization of supplies A standardization of supplies, equipment or spare parts renders competition impracticable
In certain cases, it may still be possible to select competitively among alternate suppliers of a particular brand.
 Long Term Agreements (LTAs)  Competition waived by the use of Long Term Agreements from UNAIDS or another UN entity.

See 10.05 Long Term Agreements (LTA)
 Sole source of supply  The proposed contract relates to procurement from a sole source of supply.
 Officially declared emergencies In cases of life-threatening situations or major staff security concerns.  

Urgency arising from events such as lack of planning is not an adequate justification.
 Purchasing or leasing real estate Real estate is recognized as discrete and unique, and it is thus unsuited to competitive bidding. If office premises are required, the starting point should always be to look for common UN premises.

www.undg.org > Common Premises/UN House
Value for money of the purchase or lease of rental estate must be justified in the request for waiver.
 Recent formal competition (within last 12 months) - RFP or ITB Identical requirements were obtained competitively within the last 12 months, and prices and conditions are unchanged and remain competitive
Cumulative value procurement thresholds apply.
 De facto waiver Documented efforts to obtain identical requirements through effective competition have failed to provide satisfactory results.

There will be situations where attempts have been made to make the process competitive, but the process did not result in a sufficient number of compliant bids or proposals.

If only one compliant proposal or bid is received, it shall be presented as a de facto waiver (i.e. the review and award of contract will follow the thresholds that apply for waivers).

If more than one compliant proposal or bid is received, but there are fewer than the required three, then the case shall be presented as competitive with an explanation of why the response to the solicitation was weaker than anticipated.

In both of the above cases, before requesting a waiver, the staff conducting the procurement process should consider either extending the bidding period (before it closes), or they should re-evaluate UNAIDS’ minimum requirements. They could then re-tender the solicitation with modified Terms of Reference or requirements in order to increase competition while still satisfying UNAIDS’ requirements.

 Exemption by the UNAIDS Executive Director The UNAIDS Executive Director determines that formal solicitation will not give satisfactory results, or that is not in the interest of UNAIDS in this particular case.

Justification for waivers

A written justification for waiving competition is required and should be clearly stated in the adjudication report. The justification should be based on the criteria established in this section, and it must provide detailed background and reasons for the waiver.
The written justification should be submitted for review and the award of the contract prior to the signing of the contract and the start of activities.