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Public Procurement and Disposla Bill H. B. 5, 2016]

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H. B. 5, 2016]


 

 

Public Procurement and disPosal of Public assets

 

 

Public Procurement and disPosal of Public assets bill, 2016

 

 

memorandum

 

Public procurement is the procedure through which public bodies such as government ministries, parastatals and local authorities acquire goods and services and construct or acquire buildings and other infrastructure. It usually entails tendering, calling for bids from suppliers and accepting the most favourable bid. In Zimbabwe public procurement is governed by the Procurement Act [Chapter 22:14] under which a body called the State Procurement Board conducts procurement on behalf of government entities.

 

This Bill will repeal the Procurement Act and abolish the State Procurement Board. In place of the Board it will set up a new body to be called the Procurement Regulatory Authority of Zimbabwe which will not conduct procurement proceedings itself but instead will oversee and regulate procurement activities conducted by government Ministries, statutory bodies (parastatals) and local authorities. These bodies are called “procuring entities”. The Bill will also set out the procedures to be followed and the steps to be taken in procurement proceedings to ensure fairness, transparency and honesty.

 

In more detail the provisions of the Bill are as follows: PART I

Preliminary

 

Clause 1 sets out the Bills short title and will give the President power to fix the date on which it comes into operation. This will allow time for regulations and administrative arrangements to be put in place so that the Bill becomes effective immediately it is brought into operation.

 

Clause 2 defines terms that are used throughout the Bill. The definitions are self- explanatory but it should be noted that the definition of “procuring entity” is a broad one which covers not only government ministries and departments but also statutory bodies (parastatals), government-controlled companies, provincial and metropolitan councils, local authorities (i.e. urban and rural district councils) and State partnerships and joint ventures.

 

Clause 3 indicates the transactions to which the Bill applies, namely the procurement of goods, services and construction works (i.e. buildings and infrastructure) by procuring entities, as well as the disposal of assets by those entities. The Bill will not override Zimbabwes obligations under international treaties that are binding on the country, nor will it apply to the specialist services listed in subclause (3) or to procurement by diplomatic missions outside Zimbabwe. Finally, the President will be given power to prevent the disclosure of sensitive security information that might otherwise have to be published under the Bill (subclause (6)), the Authority will be given power to exempt procuring entities from compliance with particular provisions of the Bill (subclause (7)) and the responsible Minister will be able to exempt public assets from the Bills ambit (subclause (8)). All these exemptions will have to be publicised.

 

Clause 4 will set out the objectives to be achieved by the Bill, most importantly to ensure that procurement is transparent, fair, honest, cost-effective and competitive as required by section 315 of the Constitution.

 

 

(i)


 

PART II

 

Procurement Regulatory Authority of Zimbabwe

 

This Part of the Bill establishes the new Procurement Regulatory Authority of

Zimbabwe (called “the Authority” in the Bill).

 

Under clause 5 the Authority will be a body corporate, i.e. a body that has legal personality.

 

Clause 6 sets out the Authoritys functions. Its main function will be to supervise public procurement proceedings to ensure transparency, fairness, honesty, cost- effectiveness and competition. Ancillary functions include advising and assisting procuring entities, issuing directives and guidelines, maintaining databases on procurement, and registering bidders and contractors. In exercising its functions the Authority will have to be impartial and transparent (clause 6(2)) and will have to observe the rules of natural justice (clause 6(3)).

 

Under Clause 7 the Authority will have power to issue directives to procuring entities, to order them to provide information about their procurement proceedings and generally to do whatever is needed to ensure that they comply with the Bill. The Authority will also be able to exercise the ancillary powers set out in the Second Schedule.

 

Clause 8 establishes the Board of the Authority, which will consist of between seven and nine members appointed by the responsible Minister after consultation with the President. Members will be appointed for their skill and experience in fields relating to procurement, and the Board will have to have equal numbers of men and women and fair regional representation. Details regarding the membership, procedures, staff and finances of the Board are set out in the Bills First Schedule (clause 9).

 

Under clause 10 the Board of the Authority will be able to authorise officers to

sign contracts and documents on behalf of the Authority.

 

Clause 11 will oblige the Authority to report annually to both Houses of Parliament on its activities and the functioning of the public procurement system. Annual reports will be laid before Parliament by the responsible Minister.  In addition, the Authority will be able to apprise the Minister on matters the Board wishes to bring to his or her attention, and will be obliged to provide the Minister with further reports on the countrys procurement system (clause 11(3)).

 

Under clause 12 the Board of the Authority will be able to take decisions and hold meetings even if there are vacancies in its membership, so long as there are enough Board members to form a quorum.

 

Clause 13 will exempt the Authority and its Board and employees and agents

from liability unless their conduct is negligent or malicious or in breach of a contract.

 

PART III

 

resPonsibility for Procurement and Procuring entities

 

Clause 14 states fundamental features of the Bill:

      Responsibility for procurement will be devolved to procurement entities.

      In order to procure items above a value fixed in regulations, a procuring

entity will have to be authorised by the Authority.

      The Authority is responsible for supervising procuring entities.

 

Clause 15 will prohibit procuring entities from engaging in procurement above a value prescribed in regulations unless they have received written authorisation from the Authority. Authorisation will be valid for renewable two-year terms and will be subject

 

(ii)


 

to conditions fixed by the Authority. The procedures for applying for authorisation, and

its grant or refusal, are set out in the Third Schedule to the Bill.

 

Clause 16 is directed at trying to prevent accounting officers and other officials of procuring entities from complying with illegal instructions given to them by their superiors.  If they think an instruction is illegal they will have to tell the person who gave them the instruction, in writing, why they think it is illegal;  if despite this the person orders them to comply with it they will have to do so, but will report the matter to the Minister and the Auditor-General and, in certain cases, to the Chief Secretary to the President and Cabinet.

 

Under clause 17 procuring entities will have to establish management units to manage all aspects of their procurement activities. If a procuring entity is too small to have its own management unit it will be able to call upon the unit of another procuring entity or appoint an independent procurement agent to carry out the functions of a unit. For each sizeable procurement, a procuring entity will be obliged under clause 18 to appoint an evaluation committee to evaluate bids and recommend to the procurement management unit which bid to accept.

 

Under clause 19 procuring entities will be able to combine their resources to conduct collective procurement, either through a central management unit or by conducting their procurement activities through one of their number or by sharing the items acquired through procurement.

 

PART IV

 

Procurement PreParation  and Planning

 

Clause 20 will require procuring entities to standardise their procurement documents and ensure they will have enough funds to undertake procurement proceedings and fulfil their obligations under the resulting procurement contracts.

 

Clause 21 enjoins procuring entities to plan procurement so that they get value

for money and obtain their requirements in the most cost-effective way.

 

Clause 22 will oblige procuring entities to prepare and publish annual plans of their procurement, and for very large procurements entities will have to prepare and publish individual plans under clause 23. Where entities have shared arrangements for their procurement the lead procuring entity (i.e. the entity with the greatest resources) will be responsible for preparing the plans (clause 24).

 

Clause 25 will prohibit procuring entities from dividing their procurements up to avoid the stringent requirements of the Bill that apply to large-scale procurements. For example, if a procuring entity needs to acquire five vehicles it will not be allowed to acquire them one at a time in order to take advantage of the simpler provisions of the Bill applying to small procurements.

 

Clause 26 will allow procuring entities to investigate the market and seek advice on technical issues before embarking on procurement proceedings.

 

PART V

 

technical Requirements and qualifications of Bidders

 

Clause 27 will require bidding documents published by a procuring entity to set out clearly and precisely what the entity wants to acquire so that bidders can compete in the procurement knowing what is wanted.

 

Under clause 28 all bidders regardless of nationality must be allowed to compete in any procurement so long as they meet specified ethical and legal standards. Procuring entities will not be allowed to restrict the criteria for eligibility in order to avoid competition or to favour unduly one or more particular bidders. Under clause


 

29, however, procuring entities will be allowed to favour domestic (i.e. Zimbabwean) suppliers so long as the domestic preference is stated in the bidding documents and is permitted by regulations or by circulars issued by the Authority.

 

PART VI

 

methods of Procurement

 

This Part sets out the various methods of procurement open to procuring entities.

 

Clause 30 states that the competitive bidding method of procurement is the normal method to be employed by procuring entities, unless circumstances demand that the other methods described in the Part should be employed. If one of those other methods is employed the procuring entity must record its reasons for employing it.

 

Clause 31 describes the competitive bidding method of procurement, which is the method that should normally be employed. It entails that all qualified bidders should be allowed to participate in the procurement, and all should be treated equally.

 

Clause 32 describes the restricted bidding method of procurement, which is the same as the competitive bidding method except that the right to bid is limited to bidders who are selected by the procuring entity. This method can be used where it is not cost- effective to open bidding to all potential bidders, or where time does not permit open bidding.

 

Clause 33 describes the direct procurement method, whereby a procuring entity obtains what it needs from only one supplier without receiving bids from other suppliers. This method can be used when opening the process to competitive bidders and has produced no suitable bids or where there is only one supplier who can provide the procurement requirement, or the situation is too urgent to allow the procuring entity to seek other bids, or where the one supplier can offer the requirement at unusually favourable terms.

 

Clause 34 describes the request for quotations method of procurement, which can be used for low-value procurements. In this method the procuring entity solicits quotations from only a few suppliers.

 

PART VII

 

Procedures for ComPetitive  and Restricted Bidding

 

This Part sets out the procedures for competitive and restrictive bidding.

 

Clause 36 states that except in very limited circumstances all communications

between a procuring entity and bidders must be in writing.

 

Clause 37 requires that procuring entities must solicit bidders from all eligible bidders; or from all pre-qualified bidders where a system for pre-qualifying them has been employed; or, in the case of restricted bidding, from a standing list of qualified bidders.

 

Under clause 38 documents inviting bids must contain enough information for bidders to know precisely what the procuring entity wants to acquire, how they can obtain bidding documents, and where and when their bids must be submitted. These documents must be published in the Gazette and in at least one newspaper, as well as on the Authoritys website. For large-scale procurements the documents will have to be published internationally as well.

 

Clause 39 will define the bidding period in procurement proceedings, i.e. the period starting from the publication of invitations to bid and ending on the closing date for submission of bids.

 

Clause 40 will require procuring entities to use standard bidding documents

prescribed in regulations as clarified by manuals and guidelines produced by the


 

Authority. Bidding documents will have to be made available to all bidders as soon as the procuring entity publishes its invitation to bid and will have to be provided at a cost that does not exceed the cost of printing and distributing them. Procuring entities will have to keep a record of all bidders to whom bidding documents are issued.

 

If bidding documents need to be clarified or modified, clause 41 will require the procuring entity to provide the clarification or modification to all bidders equally and, in the case of a modification, to extend the bidding period to allow bidders to take it into account.

 

Clause 42 sets out the limited circumstances in which a procuring entity may cancel procurement proceedings. If an entity does so, it will have to record its reasons and will have to allow bidders to recover their bidding documents. A procuring entity will also be allowed to reject all bids received but will have to notify the bidders promptly and provide them with reasons for the rejection.

 

Clause 43 deals with the submission of bids or applications to pre-qualify. They will have to be submitted before the deadline stated in the procurement documents, by hand or by post or by courier or by some other method authorised by the procuring entity. Bids or applications submitted after the deadline will not be considered.

 

Under clause 44 procuring entities may require all bidders to provide security for the proper fulfilment of the conditions of their bids, but any such requirement will have to be stated in the procurement documents.

 

Bidders will be allowed to amend or withdraw their bids under clause 45, so long as they comply with conditions laid down in the bidding documents or in regulations or by the Authority.

 

The opening of bids at the end of the bidding period is dealt with in clause 46. Bids will have to be opened in public at a time and place announced in the bidding documents, and when they are opened an official of the procuring entity will have to read out their salient particulars.

 

Under clause 47, procuring entities will examine the opened bids first to determine whether the bidders are qualified and then to determine whether the bids respond to the requirements set out in the procurement documents. To decide this latter point, a procuring entity will be allowed to seek clarification from a bidder under clause 48 but must do so in writing.

 

Clause 49 will permit a procuring entity to reject a bid if the bidder has falsified information in the bid or if the information is inaccurate or incomplete so that the bid cannot be evaluated.

 

Clause 50 will require procuring entities to evaluate bids according to standard criteria applicable to all the bids received. For example, all bids will have to be converted to a single currency. Where it is not possible to evaluate bids according to standard criteria, they will have to be evaluated according to weighted criteria.

 

Clause 51 will allow procuring entities to correct errors and omissions in bids – for example, arithmetical errors – which are not material. No negotiation may take place, however, between the procuring entity and a bidder which would result in an altered bid (clause 52).

 

Clause 53 will require procuring entities to keep confidential all matters regarding


bids.


 

 

Clause 54 provides for a high-level committee to test whether proposed


procurement contracts that are especially sensitive or especially valuable (including exempted and joint venture contracts) have complied with all the statutory and prudential steps necessary to secure the soundness of the eventual contract. The committee, chaired


 

 

 

Public Procurement and disPosal of Public assets

 

 

by the Attorney-General, will also comprise the Auditor-General, the Accountant- General and the Principal Director Public Works.

 

Under clause 55 procuring entities will be obliged to award their contracts to the lowest responsive bid, and notify all the bidders accordingly. A procuring entity will not, however, be permitted to sign the procurement contract until 14 days later to allow aggrieved bidders time to challenge the award under Part X of the Bill.

 

Under clause 56 procuring entities will be able to demand that a successful bidder provide performance security, i.e. security that the bidder will perform his or her obligations under the procurement contract.

 

PART VIII

 

Procurement of Consultancy  Services

 

This Part sets out the procedure for procuring consultancy services.

 

Consultancy services will have to be procured through the request for proposals method set out in clause 58. Procuring entities that require the services of consultants will have to prepare a short-list of firms (i.e. persons or organisations capable of providing the necessary services), give the firms details of the services required and ask them to come up with proposals. Procuring entities will solicit bids from the short- listed firms in terms of clause 59. Bids may be solicited through:

      the quality and cost based method set out in clause 60 (i.e. by receiving competitive bids from all the short-listed firms, evaluating the technical aspects of their bids and then considering the bid prices of the bidders that qualify technically); or

      the selection under fixed budget method set out in clause 61 (i.e. by evaluating the technical aspects of the bids received, then considering the bid prices and rejecting all those that exceed the procuring entitys proposed budget, and selecting the best of the remaining bids); or

      the least-cost selection method set out in clause 61 (i.e. by fixing minimum standards for the proposed service, rejecting all bids that offer services below those standards, and from the remaining bids choosing the lowest one); or

      the quality-based selection method in clause 63;

      the selection among community service organisations method set out in clause 64 (i.e. by soliciting bids only from community service organisations with local knowledge); or

      in exceptional cases, by the single-source selection method set out in clause

65 (i.e. by selecting only one firm which has the necessary experience and

capacity to provide the services required); or

      also in exceptional circumstances, by the selection of individual consultant method set out in clause 66, which is the same as the single-source selection method but involves the selection of an individual consultant rather than a firm.

 

PART IX

 

transParency and Integrity

 

The provisions of this Part are aimed at ensuring transparency and honesty in public procurement proceedings.

 

Under clause 67 bidders whose bids have been rejected will have a right to be told the reasons for the rejection in sufficient time for them to challenge the rejection under Part X.

 

 

(vi)


 

After awarding a procurement contract, a procuring entity will have to publish notice of the award in terms of clause 68.

 

Under clause 69 procuring entities will be obliged to keep full and accurate records of all their procurement proceedings for at least six years, and will have to permit members of the public to inspect the records.

 

Clause 70 sets out standards of honesty and propriety to be followed by officers of procuring entities concerned with procurement; these standards will be enforced by disciplinary penalties if they are breached (subclause (4)).

 

Clause 71 requires regulations under clause 101 to provide for a code of conduct

to be followed by officers and employees of procurement entities.

 

Clause 72 sets out standards of honesty and propriety for bidders in procurement proceedings and contractors under procurement contracts. If they are guilty of colluding with each other or have been guilty of other malpractices their bids will be rejected.

 

PART X Challenge Proceedings

Under clause 72 a bidder who considers he or she is likely to suffer loss from

a breach of duty by a procuring entity will be entitled to challenge the procurement proceedings by lodging a notice with the procuring entity concerned setting out the grounds of the challenge. If the procuring entity accepts that it has breached its duty, the entity will have to notify the bidder and the Authority, and take whatever steps the Authority may direct to remedy the breach. If however the procuring entity does not accept that it breached a duty the bidder can apply to the Authority under clause 73 for a review panel to be convened under clause 75 to review the proceedings. Review panels will have 14 days within which to conduct their reviews and report their findings to the Authority (clause 75). An appeal will lie to the Administrative Court against a

decision of a review panel under clause 76.

 

PART XI

 

Procurement Contracts

Clause 77 sets out the requirements for procurement contracts.  Generally they will have to follow model contracts prescribed by the Authority, and will have to state comprehensively the rights and obligations of the parties.

 

Clause 78 will give procuring entities responsibility for managing their own procurement contracts.

 

Clause 79 sets out the different ways in which procurement contracts may state the price to be paid by the procuring entity for the goods, work or services to be provided by the contractor. No adjustment of the price will be permitted unless it is provided for in the contract.

 

Clause 80 will prohibit amendments to procurement contracts that materially alter the scope and nature of the original contracts.

 

Clause 81 sets out the ways in which procurement contracts may provide for payment to be made for the work, goods or services provided by contractors.

 

Clause 82 will allow contractors to subcontract some of their performance under procurement contracts, unless subcontracting is forbidden by the contracts.

 

Under clause 83 procuring entities will have a right to inspect their contractors’

goods or work before completion of the procurement contracts.

 

Clause 84 will make it clear that procurement contracts may provide for after-sale

service to be provided by contractors.

If a procuring entity requires a contractor to obtain insurance in respect of his

 

(vii)


 

or her performance under the procurement contract, that requirement will have to be stated in the bidding documents so that the bidders are aware of the requirement (clause 85).

 

Clause 86 sets out remedies that may be provided in a procurement contract for breach of contract by the contractor. If one of these remedies is liquidated damages for delay, clause 88 lists the ways in which the damages may be calculated and other matters that must be specified in the contract.

 

Clause 88 sets out grounds justifying termination of a procurement contract by the procuring entity.

 

PART XII

 

disPosal  of Public Assets

 

This Part deals with the ways in which procuring entities may dispose of their assets.

 

Clause 89 will make the accounting officers of procuring entities responsible for ensuring that their entities’ assets are disposed of lawfully when they become unserviceable, obsolete or surplus to requirements.

 

every procuring entity will have to establish a disposal committee under clause 90 for the purpose of recommending how assets should be disposed of. Where an asset has become unserviceable, obsolete or surplus, the person in charge of it will have to report to the disposal committee under clause

92 and the committee will recommend to the accounting officer a suitable way of disposing of the asset. If the accounting officer does not accept the recommendation he or she will have to tell the disposal committee and the Authority, and the committee will have to give further consideration to the matter. The Authority will be entitled to give procuring entities written directions as to the disposal of their assets.

 

Clause 92 will limit the circumstances in which procuring entities can dispose of their assets to their own employees or board members.

 

Anyone aggrieved by a procuring entitys disposal or proposed disposal of an asset will be entitled to challenge it in the same way as bidders in procurement proceedings under Part X of the Bill (clause 93).

 

PART XIII

 

investigations  by Authority

 

Clause 95 will give the Authority power to appoint investigators to look into suspected contraventions of the law in relation to procurement. Investigators will have the same powers as commissioners under the Commissions of Inquiry Act and, in addition, will be able to enter the premises of procuring entities or contractors, question their employees, inspect records and take documents needed for the purpose of their investigations (clause 96).

 

On completion of an investigation, an investigator will report to the Authority and send a summary of the report to the procuring entity and contractor involved (clause 97). The Authority will have power to take whatever action it considers necessary arising out of the report, including cancellation of the procurement contract.

 

PART XIV

 

general

 

Under clause 98 the Authority will be able to declare persons ineligible


 

to participate as bidders in procurement proceedings for up to three years, if the Authority

is satisfied that they have been guilty of corruption or fraud.

 

Clause 99 will give the responsible Minister power to make regulations regarding all matters concerned with public procurement. Before doing so, the Minister will have to consult the Minister of Finance and the Authority, and will have to give public notice of any proposed regulations.

 

Clause 100 will oblige the Authority to keep up-to-date copies of the Bill and all regulations, directions and instructions made under the Bill, and to allow the public to inspect them at all reasonable times.

 

Clause 101 will repeal the existing Procurement Act [Chapter 22:14] and save in force some things done under the Procurement Act (“the repealed Act”); it will also provide for the transition from the current procurement system to the system under the Bill. In particular:

      Property belonging to the present State Procurement Board will be transferred

to the Authority (subclause (2)).

      Procurement proceedings which have already commenced when the Bill becomes law will be continued as if the repealed Act had not been repealed, though the Authority will be able to apply specific provisions of the Bill to those proceedings (subclause (3)).

      Directions or orders given by the State Procurement Board under the repealed Act will continue in force as if they had been made by the Authority under the Bill (subclause (4)).

      Procuring entities will have to apply to the Authority for authorisation to conduct procurement proceedings under the Bill, and the Authority will have to deal with such applications as soon as possible (subclauses (5) and (6)).

 

First Schedule: This Schedule, which sets out provisions relating to the membership, procedures, staff and finances of the Authority, has been dealt with above in relation to clause 9. The Schedule is similar to equivalent schedules in other Acts setting up statutory bodies like the Authority.

 

Second Schedule: This Schedule sets out additional powers of the Authority, such as the power to acquire and deal with property, open bank accounts and employ staff.

 

Third Schedule: This Schedule sets out the procedure by which procuring entities are given authorisation to conduct procurement proceedings. The Schedule has been dealt with above in relation to clause 15.


 

 

Public Procurement and disPosal of Public assets

 

 

Public Procurement and disPosal of Public assets bill, 2016

 


 

 

 

 

 

 

Section


ARRANGEMENT OF SECTIONS

 

PART I Preliminary


1.  Short title and date of commencement.

2.  Interpretation.

3.  Application of Act.

4.  Objectives of Act.

 

PART II

 

Procurement Regulatory Authority of Zimbabwe

 

5.  establishment of Procurement Regulatory Authority of Zimbabwe.

6.  Functions of Authority.

7.  Powers of Authority.

8.  Board of Authority.

9.  Provisions relating to membership, procedure, staff and finances of Authority.

10.  Execution of contracts and instruments by Authority.

11.  Reports of Authority.

12.  Validity of decisions and acts of Board and committees.

13.  Exemption from liability of Authority and its employees and agents.

 

PART III

 

resPonsibility for Procurement and Procuring entities

 

14.  Responsibility for procurement.

15.  Authorisation to conduct procurement.

16.  Duties of accounting officers and other persons to comply with Act.

17.  Procurement management unit of procuring entity.

18.  evaluation committees of procuring entity.

19.  Shared procurement among procuring entities.

 

PART IV

 

Procurement PreParation  and Planning

 

20.  Procurement preparation.

21.  Planning of procurement.

22.  Annual procurement plan.

23.  Individual procurement plan.

24.  Planning for shared procurement.

25.  Division of procurements.

26.  Market consultations.

 

PART V

 

technical Requirements and qualifications of Bidders

 

27.  Description of subject-matter of procurement.

28.  Participation by bidders.

29.  Domestic preference.


 

 

Section


 

methods of Procurement


30.  Selection of procurement method.

31.  Competitive bidding method.

32.  Restricted bidding method.

33.  Direct procurement method.

34.  Request for quotations method.

 

PART VII

 

Procedures for ComPetitive  and Restricted Bidding

 

35.  Application of Part VII.

36.  Form of communication.

37.  Invitations to bid.

38.  Contents and publication of procurement notices.

39.  Bidding period.

40.  Bidding documents.

41.  Clarification and modification of bidding documents.

42.  Cancellation of procurement proceedings or rejection of bids.

43.  Submission of bids or applications to pre-qualify.

44.  Bid security.

45.  Amendment or withdrawal of bid.

46.  Opening of bids.

47.  Examination of opened bids.

48.  Clarification of bids.

49.  Rejection of bids.

50.  evaluation of bids.

51.  Correction of errors and omissions in bids.

52.  Prohibition of negotiation regarding bids.

53.  Confidentiality.

54.  Special Procurement Oversight Committee for certain especially sensitive or especially valuable contracts.

55.  Contract award.

56.  Performance security.

 

PART VIII

 

Procurement of Consultancy  Services

 

57.  Interpretation in and application of Part VIII.

58.  Request for proposals method.

59.  Methods of soliciting, evaluating and selecting bids.

60.  quality and cost based selection method.

61.  Selection under fixed budget method.

62.  Least-cost selection method.

63.  Quality-based selection method.

64.  Selection amongst community service organisations method.

65.  Single-source selection method.

66.  Selection of individual consultant method.


 

transParency and Integrity

 

Section

67.  Information to be given to rejected bidders.

68.  Notification of contract award.

69.  Records of procurement proceedings.

70.  Conduct of procurement officers.

71.  Code of conduct for procurement officers.

72.  Conduct of bidders and contractors.

 

PART X

 

challenge Proceedings

 

73.  Challenge to procurement proceedings.

74.  Application for review of procurement proceedings by review panel.

75.  Appointment of review panels.

76.  Review by review panel.

77.  Appeal to Administrative Court against decision of review panel.

PART XI Procurement Contracts

 

78.  Procurement contract.

79.  Responsibility for contract management.

80.  Approaches to pricing in procurement contract.

81.  Variation of procurement contract.

82.  Payment under procurement contract.

83.  Subcontracting.

84.  Inspection of goods and construction works.

85.  After-sale service.

86.  Insurance requirements.

87.  Remedies for breach of contract.

88.  Liquidated damages for delay.

89.  Contract termination.

 

PART XII

 

disPosal  of Public Assets

 

90.  Responsibility for disposal of public assets.

91.  Disposal committee.

92.  Disposal procedure.

93.  Restriction on disposal of assets to employees, etc.

94.  Challenge to disposal of asset by procuring entity.

 

PART XIII

 

investigations  by Authority

 

95.  Interpretation in Part XIII.

96.  Appointment of investigator by Authority.

97.  Powers of investigator.

98.  Procedure on completion of investigation.


 


 

 

 

Section


PART XIV

 

General


99.  Authority may declare person ineligible to be awarded procurement contract.

100. Application of Act to joint ventures.

101. Regulations.

102. Publication of legal documents.

103. Repeal of Cap. 22:14 and savings and transitional provisions.

104. Amendment of section 4 of Cap. 24:14.

105. Amendment of section 79 of Cap. 29:13.

106. Amendment of Cap. 29:15.

 

FIRST SCHeDULe: Provisions Applicable to Membership, Procedures, Staff and Finances of Authority.

 

sECOND SChEDuLE: Ancillary Powers of Authority.

 

tHIRD SCHeDULe: Authorisation to Conduct Procurement Proceedings.


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

bill

 

To provide for the control and regulation of public procurement and the disposal of public assets so as to ensure that such procurement and disposal is effected in a manner that is transparent, fair, honest, cost-

5                effective and competitive; to establish the Procurement Regulatory Authority of Zimbabwe and to provide for its functions; to amend the Infrastructure Development Bank of Zimbabwe Act [Chapter 24:14]; to repeal the Procurement Act [Chapter 22:14] (No. 2 of 1999); and to provide for matters connected with or incidental to the foregoing.

 

10                ENACTED by the Parliament and President of Zimbabwe.

 

 

1    Short title and date of commencement

 

(1) This Act may be cited as the Public Procurement and Disposal of Public

Assets Act [Chapter 22:23].

 

(2) This Act shall come into operation on a date to be fixed by the President

15      by notice in a statutory instrument.

 

 

2    Interpretation

 

(1) In this Act—

“accounting officer”, in relation to—

(a)   a procuring entity that is a Ministry or other entity for which there is

20                                         a separate expenditure vote in the annual estimates of expenditure, means the person who is prescribed to be its accounting officer in terms of section 10 of the Public Finance Management Act [Chapter

22:19] (No. 11 of 2009);

(b)   a procuring entity other than an entity referred to in paragraph (a),

25                                         means such officer of the entity as may be prescribed;

 

H.B. 5, 2016.]

 

Printed by the Government Printer, Harare


 

“Authoritymeans the Procurement Regulatory Authority of Zimbabwe established by section 5;

“bid” means an offer, solicited by a procuring entity in accordance with this Act, which if accepted would bind the bidder to provide a procurement requirement in accordance with the procurement contract;                                                                                              5

“bid security” means a monetary assurance given by a bidder and guaranteed by a bank or other third party that—

(a)   if the bidder withdraws his or her bid before the end of the bidding period; or

(b)   refuses to sign the procurement contract if selected;                        10

the bidder will forfeit the bid security amount to the procuring entity; “bidder” means a potential party to a procurement contract with a procuring

entity for the supply of a procurement requirement;

“bidding documentmeans a document provided by a procuring entity to bidders and indicating the form in which they are to submit their bids                                     15 and the information they are to provide in their bids;

“bidding period” means the period described in section 39(1), within which

bids may be submitted;

“Board” means the Board of the Authority;

“building” includes any man-made structure whatsoever or any part thereof,   20

whether above or below the ground;

“challenge” means a challenge to procurement proceedings brought in terms of Part X;

“Chief Executive Officer” means the Chief Executive Officer of the Authority,

appointed in terms of paragraph 12 of the First Schedule;                        25

“conduct” includes an act or omission;

“conflict of interest” means a situation in which a public officers personal or family interests may benefit, directly or indirectly, from any conduct on his or her part, or any decision he or she may make, as a public officer;

“construction workmeans all work associated with the construction,         30 reconstruction, demolition, repair or renovation of any building or infrastructure, and includes—

(a)   site preparation, excavation work, the installation of equipment or materials, decoration and finishing; and

(b)   incidental services such as drilling, mapping, photography and     35

environmental and seismic investigation, where—

(i)   the services are provided pursuant to a procurement contract;

and

(ii)   the value of the services does not exceed that of the construction

work itself;                                                                          40

“consultancy service” means a service of an intellectual and advisory nature, and “consultant” shall be construed accordingly;

“contractor” means a person that enters into a procurement contract with a procuring entity;

“daymeans a day of the week other than a Saturday, Sunday or public holiday;   45

“e-procurementmeans the procurement of goods, construction works or services through Internet-based information technology;

“electronic communication” means the transfer or recording of information through an electronic or similar medium;


 

“evaluation committee” means an evaluation committee appointed in terms of section 18;

“framework agreement” means an agreement between a procuring entity and a bidder (or bidders consisting of two or more competing suppliers of the

5                                procurement requirement) to establish the terms and conditions governing procurement contracts to be awarded during a period, in particular with regard to price and, where appropriate, the quantities envisaged;

“goods” means things of any kind or description, including— (a)   raw materials, products and equipment; and

10                                (b)   things in solid, liquid or gaseous form; and

(c)   electricity; and

(d)   services incidental to the supply of the goods, where the value of

the services does not exceed that of the goods themselves;

“hard copy”, in relation to a document, means a document that is written on

15                               paper;

“joint venture agreement” has the meaning given to it by section 2(2) of the

Joint Ventures Act [Chapter 22:22] (No. 6 of 2015);

“lead procuring entity” means a procuring entity that conducts procurement on behalf of other procuring entities under an arrangement referred to in

20                               section 19(1);

“material deviation” has the meaning given to it in subsection (2); “member” means the chairperson or any other member of the Board; “Minister” means the Minister of Finance and economic Development or any

Vice-President or other Minister to whom the President may, from time

25                               to time, assign the administration of this Act;

“non-consultancy servicemeans a labouring or other service that is performed

physically;

“parent body”, in relation to—

(a)   a procuring entity that is a department, office or subdivision of a

30                                         Ministry, means the Ministry;

(b)   any other procuring entity, means—

(i)    a person or authority that controls or is responsible for the activities, in particular the financial affairs, of the procuring entity; or

35                                         (ii)   such other person or authority as may be prescribed; “performance securitymeans a monetary assurance given by a bidder or

contractor and guaranteed by a bank or other third party that the bidder

or contractor will satisfactorily perform his or her obligations under the procurement contract;

40                     “price”, in relation to a procurement requirement or procurement contract, means the price paid or to be paid by the procuring entity for the procurement requirement, or the cost of the procurement requirement to the procuring entity;

“procurement” means the acquisition by any means of goods, construction

45                               works or services (and for the purposes of sections 3(5), 4(1)(a) and (d)

and 6(1)(a), includes the disposal of any asset in terms of Part XII);

“procurement activities” means any one or more of the totality of the specific activities or tasks required in any way to bring the procurement process to a successful conclusion or to ensure that the process has been conducted

50                               in accordance with this Act;


 

“procurement contract” means a contract between a procuring entity and a contractor which results from procurement proceedings;

“procurement management unitmeans a procurement management unit established in terms of section 17;

“procurement notice” means a notice published in terms of section 38(2);          5

“procurement proceedingsor “procurement processmeans all stages or any stage of the procurement of goods, construction works or services conducted by a procuring entity from the pre-bid stage up to and including the award of the contract;

“procurement requirement” means the goods, construction work or service to    10

be acquired by procurement;

“procuring entity” means—

(a)   a Ministry, department or other division of the Government; or

(b)   a corporate body established by or in terms of any Act for special purposes laid down in that Act; or                                                                                        15

(c)   any company in which the State has a controlling interest, whether by virtue of holding or controlling its shares or by virtue of a right of appointment of members to its controlling body or otherwise, and includes any company which is a subsidiary, as determined in

accordance with section 143 of the Companies Act [Chapter 24:03],    20

of such a company; or

(d)   a provincial or metropolitan council or a local authority; or

(e)   any partnership or joint venture between the State and any person, which is prescribed in terms of this Act or the Public Finance Management Act [Chapter 22:19] (No. 11 of 2009);                                                                                        25

“public assetmeans any asset of whatever nature, whether corporeal or incorporeal, belonging to or vested in the State or a procuring entity, but does not include any such asset exempted from the application of this Act by section 3(8);

“responsive bid” means a bid that meets the requirements of the procuring     30

entity;

“servicemeans a procurement requirement that is performed through

consultancy or non-consultancy service;

“threshold” means a financial limit above or below which certain procurement

proceedings may be applied under this Act;                                            35

“writing” includes printing, photography, electronic communication and any other method of representing words, figures and information in visible form that is reproducible in tangible form by the device that generated the visible words, figures or information.

 

(2) For the purposes of this Act, there shall be a material deviation between   40

bidding documents or the terms and conditions of a procurement contract, on the one hand, and the performance of the procurement contract, on the other hand, if—

(a)    the deviation affects in a substantial way the scope, quality or performance of the construction works, goods or services provided under the contract;

or                                                                                                      45

(b)   the deviation limits in any substantial way the rights or obligations of the parties under the contract; or

(c)    rectification of the deviation would unfairly affect the competitive position

of other bidders who presented substantially responsive bids.


 

3    Application of Act

 

(1) Subject to this section, this Act shall apply to all stages of the process of— (a)   the procurement of goods, construction works and services by procuring

entities; and

5                      (b)    the disposal of public assets by procuring entities.

 

(2) To the extent that this Act conflicts with an obligation of Zimbabwe under

or arising out of any convention, treaty or agreement between Zimbabwe and— (a) one or more foreign states or governments; or

(b)   one or more international financial organisations;

10      the requirements of the convention, treaty or agreement shall prevail.

 

(3) This Act shall not apply to—

(a)    the procurement or acquisition of any of the following services—

(i)   fiscal agency or depositary services; or

(ii)   liquidation and management services for regulated financial

15                                         institutions; or

(iii)   services related to the sale, redemption and distribution of public debt, including loans and Government bonds, notes and other securities; or

(iv)   arbitration or conciliation services;

20                     (b)    public employment contracts.

 

(4) If any professional services are to be procured from any person who is bound by a statutory tariff in relation to that profession or service, this Act shall apply so as not to require that person to be so bound, and no adverse consequences shall be visited upon that person for not adhering to such tariff.

 

25                     (5) Procurement by Zimbabwean diplomatic or consular missions outside Zimbabwe need not be conducted in accordance with this Act, but the officers in charge of such missions shall ensure that their procurement is conducted through a competitive process compliant with the general principles set out in this Act.

 

(6) The President, by notice in the Gazette, may declare that it would be contrary

30      to the interests of defence, public security or the national interests of Zimbabwe for the procurement or disposal of any construction works or class of such works to be publicly disclosed, and thereupon this Act shall apply to the procurement or disposal of such works with whatever modifications may be necessary to ensure that information concerning such works, or their procurement or disposal, is not disclosed to the prejudice

35      of the defence, security or national interests of Zimbabwe.

 

(7) The Authority, for good cause shown, may by written notice to the body concerned exempt any procuring entity from compliance with any provision of this Act, and thereupon the provision concerned shall not apply to that procuring entity:

 

Provided that the Authority shall ensure that a copy of any such exemption is

40      kept at its offices and is open to inspection there by interested persons at all reasonable

times.

 

(8) The Minister, with the approval of the Authority and by notice in the Gazette,

may exempt any public asset from the application of Part XII of this Act.

 

4    Objectives of Act

45                     (1) The objectives of this Act are—


 

(a)    to ensure that procurement is effected in a manner that is transparent, fair,

honest, cost-effective and competitive;  and

(b)   to promote competition among bidders;  and

(c)    to provide for the fair and equitable treatment of all bidders, leading to procurement contracts that represent good value for money;  and                                               5

(d)   to promote the integrity of, and fairness and public confidence in,

procurement processes;  and

(e)    to secure the implementation of any environmental, social, economic and other policy that is authorised or required by any law to be taken into account by a procuring entity in procurement proceedings.                                                                                       10

 

(2) The Authority, all procuring entities, and all other persons concerned in the implementation of this Act shall exercise their functions so as to give full effect to the objectives set out in subsection (1).

 

PART II

 

Procurement Regulatory Authority of Zimbabwe                                                               15

 

5    Establishment of Procurement Regulatory Authority of Zimbabwe

 

There is hereby established an authority to be known as the Procurement Regulatory Authority of Zimbabwe, which shall be a body corporate capable of suing and being sued in its own name and, subject to this Act, of performing all acts that

bodies corporate may by law perform.                                                                      20

 

 

6    Functions of Authority

 

(1) The functions of the Authority shall be—

(a)    to ensure that public procurement is effected in a manner that is transparent,

fair, honest, cost-effective, competitive and in compliance with this Act;

and                                                                                                    25

(b)   to monitor and supervise procuring entities and the public procurement system in order to secure compliance with this Act, and to impalement electronic means of monitoring and supervising procuring entities and the public procurement system;  and

(c)    to issue technical guidelines and instructions regarding the interpretation     30

and implementation of this Act;  and

(d)   to prepare standard documents and templates to be used in connection with public procurement and to enable procuring entities to maintain records and prepare reports;  and

(e)    to develop the use of electronic tools for procurement, including a public    35 procurement website and statistical databases containing information on public procurement in Zimbabwe, and specify the conditions under which

such databases will be availed to the public;  and

(f)    to enable the publication on the website referred to in paragraph (e) of documents that are required to be published by procuring entities;  and                                 40

(g)   on request, to give advice and assistance to procuring entities:

 

Provided that no such advice or assistance shall limit the responsibilities of a procuring entity for compliance with this Act;  and

(h)   to promote the training and professional development of persons engaged

in public procurement so as to ensure their adherence to high ethical   45

standards;  and

(i)    to develop and implement a transparent and equitable framework for the registration of bidders or contractors;  and


 

(j)    to develop and advise the Government on ways in which the environmental, social and economic policies of Zimbabwe, including those designed for economic empowerment and domestic preferences, may be implemented through public procurement;  and

5                     (k)   to refer contraventions of this Act to appropriate enforcement or disciplinary authorities;  and

(l)    to establish and implement an independent review mechanism to deal with challenges brought by aggrieved bidders in accordance with Part X or by other persons in accordance with Part XII;  and

10                     (m)  to consult regularly with persons in the public and private sectors who have an interest in the public procurement system, in order to assess their perception of the system;  and

(n)   to recommend amendments to the law regarding public procurement, in

the light of international practices and experience;  and

15                     (o)    to exercise any other function conferred or imposed on the Authority by

or under this Act or any other enactment.

 

(2) The Authority shall exercise its functions impartially and without fear, favour or prejudice and shall conduct all its activities in a clear and open manner so as to give the fullest effect to the objectives of this Act set out in section 4.

 

20                     (3) Before reaching a decision that affects or is likely to affect the rights or

interests of any person, the Authority shall, to the fullest extent practicable—

(a)    give the person due and clear notice of the nature of the decision the Authority is to make and of the factors the Authority is likely to take into consideration when making it;  and

25                     (b)    allow the person reasonable access to the information available to the

Authority in regard to the matter under consideration;  and

(c)    give the person as full an opportunity as circumstances allow to make representations in the matter;  and

(d)   take into account any representations that the person may make in the

30                               matter;

and generally the Authority shall observe due process and the rules commonly known as the rules of natural justice.

 

(4) Where the Authority has made a decision or taken action that adversely affects the rights or interests of any person, the Authority shall give that person, promptly

35      on demand, written reasons for the decision or action.

 

 

7    Powers of Authority

 

Without limiting section 5 (“establishment of Procurement Regulatory Authority of Zimbabwe”), in the exercise of its functions the Authority shall have power, subject to this Act, to do any of the following things—

40                     (a)    to issue directions of a general nature to procuring entities regarding the manner in which they are to conduct procurement proceedings in order to ensure compliance with this Act:

 

Provided that the Authority shall not issue such directions so as to apply only to individual procurement proceedings;

45                     (b)   to require procuring entities to collect information regarding procurement and to provide the Authority with such information in such form, and at such intervals or within such periods, as the Authority may direct;


 

(c)    to require any procuring entity or bidder to produce or disclose to the Authority, or to an officer or agent of the Authority, any information, document, record or report regarding any aspect of the procurement, contract implementation or disposal process where a breach, wrongdoing

or mismanagement has been alleged, reported or proven against any      5

procuring entity;

(d)   to co-operate with other organisations, whether inside or outside

Zimbabwe, in the exercise of its functions;

(e)    to exercise any of the ancillary powers set out in the Second Schedule;

(f)    generally, to take such measures as the Board reasonably considers are    10

necessary or desirable to ensure compliance with this Act.

 

 

8    Board of Authority

 

(1) The operations of the Authority shall be managed and directed by a Board consisting of seven or nine members appointed, subject to this section, by the Minister

after consultation with the President.                                                                        15

 

(2) Members of the Board shall be chosen for their knowledge of and experience in procurement, law, management, accountancy, auditing, engineering, human resource management, commerce or other relevant discipline, and in appointing them the Minister shall ensure that, so far as practicable—

(a)    the public and private sectors, as well as appropriate professional bodies,     20 business associations and non-governmental organisations, are adequately represented on the Board;  and

(b)   there is fair representation of Zimbabwes regions on the Board;  and

(c)    at least half the members are women.

 

 

  9    Provisions relating to membership, procedure, staff and finances of       25

Authority

 

(1) Part I of the First Schedule applies in regard to the appointment, tenure and conditions of service of members of the Board.

 

(2) Part II of the First Schedule applies in regard to the procedures to be followed

by the Board in the conduct of the Authoritys business.                                             30

 

(3) Part III of the First Schedule applies in regard to appointment and conditions of service of the Authoritys staff.

 

(4) Part IV of the First Schedule applies in regard to the Authoritys finances.

 

 

10    Execution of contracts and instruments by Authority

 

An agreement, contract or instrument approved by the Board may be entered     35 into or executed on the Authoritys behalf by the Chief Executive Officer or any other person generally or specially authorised by the Board for that purpose.

 

11    Reports of Authority

 

(1) Subject to this section, as soon as possible after the end of each financial year,

the Authority shall provide Parliament, through the Minister, with a report setting out  40

(a)    the Authoritys activities during the year;  and

(b)   the overall functioning of the public procurement and asset disposal system in Zimbabwe;  and


 

(c)    any recommendations the Authority may wish to make on revising and improving procurement procedures;  and

(d)   any other matters the Authority wishes to bring to the attention of the

Government and Parliament.

 

5                     (2) On receipt of an annual report, the Minister shall without delay lay it before

Parliament.

 

(3) In addition to the annual report, the Authority—

(a)    may submit to the Minister reports on such matters relating to the public procurement or asset disposal system of Zimbabwe as the Board wishes

10                               to bring to the Ministers attention;  and

(b)   shall provide the Minister with such reports and information regarding the public procurement or asset disposal system of Zimbabwe as the Minister may reasonably require.

 

 

12    Validity of decisions and acts of Board and committees

 

15                No decision or act of the Board or a committee, and no act that is authorised by the Board or a committee, shall be invalid solely because there was a vacancy in the membership of the Board or the committee or because a disqualified person purported to act as a member of the Board or the committee, as the case may be, at the time the decision was taken or the act was done or authorised.

 

 

20      13    Exemption from liability of Authority and its employees and agents

 

No liability shall attach to—

(a)    the Authority;  or

(b)   any member of the Board or of a committee of the Authority;  or

(c)    any employee or agent of the Authority;

25      in respect of loss or damage sustained by any person as a result of the bona fide exercise

of any function conferred or imposed on the person concerned by or under this Act:

 

Provided that this section shall not be construed as preventing anyone from recovering damages or compensation for loss or damage that was caused by deliberate wrong-doing, negligence or breach of contract.

 

30                                                                             PART III

 

resPonsibility for Procurement and Procuring entities

 

14    Responsibility for procurement

 

(1) Subject to this Act—

(a)    each procuring entity shall be responsible for managing its procurement,

35                               where the value of the procurement requirement is below the prescribed threshold;

(b)   every procuring entity that has been authorised in terms of section 15 shall be responsible for managing its procurement, where the value of the procurement requirement is at or above the prescribed threshold.

 

40                     (2) Within any procuring entity, responsibility for ensuring that its procurement activities are carried out in compliance with this Act and any directions of the Authority shall devolve upon—

(a)    the entitys accounting officer; and

(b)   within their spheres of responsibility, the members of the entitys

45                               procurement management unit and the entitys, employees and agents who are involved in any way with procurement.


 

15    Authorisation to conduct procurement

 

(1) A procuring entity shall not initiate or conduct any procurement proceedings in which the value of the procurement requirement is at or above the prescribed threshold unless the procuring entity has been generally authorised by the Authority to conduct

such proceedings.                                                                                                                  5

 

(2) Authorisation in terms of subsection (1)— (a) shall be given in writing;  and

(b)   may be subject to such terms and conditions as the Authority may specify in the authorisation;  and

(c)    shall be valid for a period of two years from the date on which it was   10

given, and may be renewed for further such periods.

 

(3) The Third Schedule shall apply to applications for authorisation, to the grant or refusal of such applications and to the renewal of such authorisation.

 

(4) The Authority shall in relation to a procuring entity that fails to obtain authorisation to initiate or conduct any procurement proceedings at or above the                                         15 prescribed threshold appoint another procuring entity so authorised to conduct such procurement on behalf of the first mentioned entity.

 

 

16    Duties of accounting officers and other persons to comply with Act

 

(1) If an accounting officer is directed by—

(a)    a Minister or Deputy Minister;  or                                                         20

(b)   any other person with authority over the accounting officer;

 

to do or omit to do anything in respect of procurement which the accounting officer believes he or she is not authorised to do in terms of this Act, he or she shall not comply with the direction but instead shall forthwith submit in writing to the Minister, Deputy

Minister or other person in authority, as the case may be, his or her objections and the     25

reasons for the objection.

 

(2) If after receiving an accounting officers objections and reasons under subsection (1), the Minister, Deputy Minister or other person instructs the accounting officer, in writing, to comply with the direction concerned, the accounting officer shall comply with the instruction and shall immediately submit a written report thereon—                                                                                          30

(a)    to the Minister responsible for administering this Act;  and

(b)   to the Auditor-General;  and

(c)    where he or she is the accounting officer of a Ministry or department of government, to the Accountant-General;  and

(d)   where the instruction was given by a Minister or Deputy Minister, to the   35

Secretary to the Cabinet:

 

Provided that, if the Minister, Deputy Minister or other person fails or refuses to put the instruction in writing, the accounting officer shall not comply with it and, notwithstanding any term or condition of his or her employment, shall not be liable to

any penalty for such non-compliance.                                                                                 40

 

(3) Subsections (1) and (2) shall apply, with any necessary changes, where an officer, employee or agent of a procuring entity, other than an accounting officer, is directed by a Minister or Deputy Minister or any other person with authority over him or her to do or not to do anything in respect of procurement or the disposal of a public

asset which he or she believes he or she is not authorised to do in terms of this Act.        45


 

17    Procurement management unit of procuring entity

 

(1) Subject to this section, every procuring entity shall establish a procurement management unit headed by the accounting officer, which shall be responsible for managing all the entitys procurement activities in accordance with this Act.

 

5                      (2) The accounting officer of a procuring entity shall determine the size, location and structure of the entitys procurement management unit, taking into account the entitys procurement requirements and the availability of trained and experienced persons to staff the unit.

 

(3) The functions of a procurement management unit shall be—

10                     (a)    planning the procurement activities of its procuring entity;  and

(b)   securing the adoption of the appropriate method of procurement;  and

(c)    preparing bidding documents in compliance with provisions in or under this Act for the design of contract specifications and the evaluation criteria; and

15                     (d)    preparing bid notices and short-lists;  and

(e)    managing bidding processes, including pre-bid meetings, clarifications

and the receipt and opening of bids;  and

(f)    managing the evaluation of bids and any post-qualification negotiations

required;  and

20                     (g)    supervising its procuring entitys evaluation committee and—

(i)   ensuring that the committee has carried out its duties in accordance with this Act;  and

(ii)   receiving evaluation reports from the committee and ensuring that they are correct and have been prepared  in accordance with this

25                                         Act;  and

(h)   preparing evaluation reports, including contract award recommendations, where the value of the procurement is less than the prescribed threshold; and

(i)    submitting all evaluations to its procuring entitys accounting officer, with

30                                confirmation that the procedure followed has complied with this Act; and

(j)    preparing contract documents and amendments;  and

(k)   managing procurement contracts or overseeing their management;  and

(l)    preparing such procurement reports as may be required by the procuring

entitys accounting officer or the Authority;  and

35                     (m)  exercising any other function conferred or imposed on the unit by or under this Act or by its accounting officer or procuring entity.

 

(4) Where the level of a procuring entitys procurement activity does not justify the entity creating its own procurement management unit—

(a)    the entitys procurement activities shall be carried out by its parent body;

40                                or

(b)   if the entitys parent body is unable to carry out the entitys procurement activities, the entitys accounting officer may, subject to subsection (5) and any guidelines issued by the Authority—

(i)   with the consent of the other procuring entity concerned, appoint

45                                         another procuring entitys procurement management unit to conduct those activities;  or

(ii)   appoint an independent procurement agent to conduct those activities.

 

(5) Before taking action in terms of subsection (4)(b), an accounting officer

shall satisfy himself or herself that his or her procuring entity has funds available to


 

pay for the services provided by the other procuring entity or independent procurement agent concerned.

 

18    Evaluation committees of procuring entity

 

(1) For each procurement above the prescribed threshold, the accounting officer

of a procuring entity shall appoint an evaluation committee in accordance with this     5

section.

 

(2) An evaluation committee shall consist of—

(a)    one member of the procuring entitys procurement management unit; and

(b)   at least three other members, including—

(i)   the person responsible for preparing the requirements and      10 additionally, or alternatively, the technical specifications for the procurement concerned, or a person with equivalent technical expertise;  and

(ii)   a financial officer of the procuring entity;  and

(iii)   one or more other members to provide technical, legal, financial or  15

commercial expertise, as appropriate.

 

(3) The member referred to in subsection (2)(a) shall attend meetings of the evaluation committee as an adviser and shall not have a vote on any issue to be decided by the committee.

 

(4) The functions of an evaluation committee shall be—                                 20

(a)    receiving from the procurement unit the bid opening records and bids;

and

(b)  evaluating bids and preparing the bid evaluation report and recommendations for award of a contract;  and

(c)    submitting its evaluation reports to the procurement management unit;    25

and

(d)   exercising any other functions conferred or imposed on the committee

by or under this Act.

 

(5) In the exercise of its functions an evaluation committee shall be answerable

to the procurement management unit or accounting officer of its procuring entity.         30

 

 

19    Shared procurement among procuring entities

 

(1) Notwithstanding section 14 (“Responsibility for procurement”), procuring entities may, and if directed by the Authority shall, conduct their procurement by way of shared procurement arrangements which may include arrangements for—

(a)    procuring all their requirements through a procurement management unit    35

established by one of the procuring entities;

(b)   procuring particular categories of goods, construction works or services through one of the procuring entities with expertise in that type of procurement;

(c)    procuring goods, construction works or services for common use through    40

one or more designated procuring entities.

 

(2) A procuring entity that conducts procurement on behalf of other entities under a shared procurement arrangement shall be primarily responsible for ensuring that the procurement is conducted in accordance with this Act.

 

(3) Where the Authority considers, on the basis of its review of the annual    45

procurement plans submitted to it by procuring entities in terms of section 22, that—


 

(a)    it is proper to direct any group of two or more procuring entities to conduct their procurement by way of shared procurement arrangements; and

(b)   the shared procurement is of such a nature as to make the use of a

framework agreement expedient, desirable or necessary in order to achieve

5                                economies of scale;

 

the Authority shall negotiate the framework agreement on behalf of the procuring entities concerned:

 

(4) A procuring entity that is a party to a shared procurement arrangement governed by a framework agreement referred to in subsection (3) must obtain its

10      procurement requirements in accordance with that agreement unless it satisfies the Authority in writing that it is able to obtain such requirements at a better price or on better contract terms by means of a separate procurement.

 

(5) Nothing in this section inhibits—

(a)    a procuring entity from negotiating a framework agreement on its own

15                                for procurement requirements that are not subject to shared procurement arrangements; or

(b)   a group of procuring entities which are not governed by a framework agreement referred to in subsection (3) from negotiating a suitable framework agreement for their common procurement requirements with

20                                a view to achieving economies of scale.

 

PART IV

 

Procurement PreParation  and Planning

 

20    Procurement preparation

 

(1) For the purposes of any procurement, a procurement management unit shall

25      use only the standard bidding documents that are produced and issued by the Authority.

 

(2) A procuring entity shall ensure that, before initiating procurement proceedings, adequate funds have been budgeted and allocated to the procurement, including any funds required for the publication of notices:

 

Provided that the absence of budgeted or allocated funds shall not inhibit a

30      procuring entity from concluding a framework agreement, as long as any orders made in pursuance of such agreement are, on the date of the order, financed by budgeted or allocated funds.

 

(3) Before initiating proceedings for a procurement contract that will commit

the entity to make payments in subsequent financial years, a procuring entity shall—

35                     (a)    obtain approval from—

(i)   the Minister responsible for finance, where the procuring entity is

a Ministry or department of government;  or

(ii)   such other person as may be prescribed, in any other case;

and

40                     (b)    ensure that funds for the current financial year are budgeted and allocated

to the procurement;  and

(c)    ensure that funds for the procurement are included in budgets for

subsequent financial years:

 

Provided that this paragraph shall not preclude the procuring

45                                entity from including provision in the procurement contract for a right to cancel the contract in the event that sufficient funding is not included in a budget for a subsequent financial year.


 

21    Planning of procurement

 

(1) A procuring entity shall plan its procurement with a view to achieving maximum value for public expenditure, so that the procurement is carried out within available financial resources and other applicable limitations and at the most favourable

time.                                                                                                                      5

(2) So far as possible, a procuring entity shall aggregate its procurement requirements in order to achieve economies of scale and shall use framework agreements where appropriate.

 

(3) Before commencing any procurement process, a procuring entity shall—

(a)    investigate whether or not its requirements can be met internally, for   10

example by the transfer of goods from one department to another;  and

(b)   ensure that an accurate estimate has been prepared of the cost of the procurement process, including the price of the procurement requirement and the cost of contingencies that may reasonably be expected to arise

under the procurement contract;  and                                                     15

(c)    ensure that the amount of the estimate referred to in paragraph (b) has

been properly covered in the entitys budget for the current financial year.

 

22    Annual procurement plan

 

(1) For each financial year and no later than one month after the end of such,

a procuring entity shall prepare a procurement plan which shall—                               20

(a)    be in accordance with a template prepared by the Authority;  and

(b)   contain at least such information as may be prescribed;

and shall forward the plan without delay to the Authority.

 

(2) The Authority and the procuring entity shall publish, in summary form, the

list of goods, construction works and services included in the entitys annual plan for    25

procurement during the coming financial year.

 

23    Individual procurement plan

 

(1) In addition to its annual procurement plan prepared in terms of section 22, a procuring entity shall prepare an individual procurement plan for each individual procurement above the prescribed threshold value, which plan shall—                                                                                                  30

(a)    be in accordance with a template prepared by the Authority;  and

(b)   contain at least such information as may be prescribed;

and shall forward the plan without delay to the Authority.

 

(2) The Authority shall publish on its website every plan forwarded to it in

terms of subsection (1).                                                                                           35

 

24    Planning for shared procurement

 

Where two or more procuring entities conduct their procurement by way of shared procurement arrangements in terms of section 19, the designated or lead procuring entity, on behalf of the others, may prepare the plans referred to in sections 21, 22 and

23, and for that purpose the other entities shall provide it with the necessary information  40

to enable it to prepare those plans and carry out the shared procurement activities.

 

25    Division of procurements

 

(1) Subject to this section, a procuring entity may divide a procurement requirement, which could be procured in a single contract, into a package consisting of


 

several lots which are to be bid together, where it is anticipated that the award of several separate contracts may result in the best overall value for the procuring entity or meet any environmental, social and economic objectives referred to in section 4(2)(e).

 

(2) A procurement requirement shall not be divided—

5                      (a)    in order to avoid financial thresholds prescribed for the purposes of determining the appropriate procurement method, whether such division is by way of splitting a quantity of a single procurement requirement or splitting of a generic procurement requirement into several lots;  or

(b)   where the award of several separate contracts would create problems of

10                                compatibility or inter-changeability between goods, construction works or services procured as separate lots, or would unduly strain contract administration resources;  or

(c)   where the award of several separate contracts would invalidate or otherwise restrict any contractors warranty or liability;  or

15                     (d)   where the award of several separate contracts would increase the costs of servicing, maintenance or similar requirements.

 

(3) Where a procurement requirement that could be procured through a single procurement contract is divided into lots, the procuring entity shall—

(a)    permit bidders to bid for a single lot, any combination of lots or all lots;

20                                and

(b)   ensure, prior to awarding the contract, that the recommended contract award or combination of contract awards offers the best overall value for the procuring entity.

 

26    Market consultations

 

25                     (1) Before initiating any procurement procedure, a procuring entity may conduct market consultations with a view to preparing the contract specifications and informing potential bidders of the entitys procurement plans and requirements.

(2) In the course of market consultations, a procuring entity may receive

technical information and advice from independent experts or authorities and from

30      potential bidders, and may use that information and advice in planning and conducting their procurement:

 

Provided that the procuring entity—

(a)    shall ensure that its use of the information or advice does not distort

competition and does not infringe the principles of non-discrimination

35                                and transparency;  and

(b)   without limiting paragraph (a), where the information or advice was supplied by a bidder, shall communicate the information or advice to all other bidders.

 

PART V

40                                 technical Requirements and qualifications of Bidders

 

27    Description of subject-matter of procurement

(1) A procuring entity shall ensure that its bidding documents—

(a)    set out clearly a full and appropriately detailed description of the procurement requirement, including—

45                                 (i)   the quality and quantity required;  and

(ii)   its function and the purpose for which it is required;  and

(iii)   any requirements relating to its performance, safety features and its safe disposal;  and


 

(iv)   requirements as to inspection and testing;  and

(v)   any applicable standards which, where possible, shall be international standards or Zimbabwean standards incorporating international standards;

and                                                                                                      5

(b)   specify the methods by which performance under the procurement contract will be measured for conformity with those requirements.

 

(2) The requirements referred to in subsection (1) shall not refer to any particular trademark or brand name, or to any patent or design, or to any producer or service provider, unless there is no other practical way of describing the procurement                                                                           10 requirement, in which event words such as “or equivalent” shall be included in the specifications.

 

 

28    Participation by bidders

 

(1) Except as prescribed under this Act or any other enactment, bidders shall

be permitted to participate in procurement proceedings without regard to nationality.    15

 

(2) Subject to this section, a procuring entity may require bidders to meet such of the following criteria for eligibility as the procuring entity considers appropriate and relevant in the circumstances of the particular procurement—

(a)    that they meet specified ethical standards;

(b)   that they have the legal capacity to enter into the procurement contract;    20

(c)    that—

(i)   they are not insolvent, in liquidation or under judicial management;

or

(ii)   their affairs are not being administered by a court or a judicial officer;

or                                                                                               25

(iii)   their business activities have not been suspended;

and no legal proceedings are pending for any of the foregoing;

(d)   that they have paid all taxes, duties and rates for which they are liable in Zimbabwe, together with any contributions or payments due under the National Social Security Authority Act [Chapter 17:04];                                                                                 30

(e)    that neither they nor any of their officers have, in the five years immediately

preceding the initiation of the procurement proceedings—

(i)   been convicted in any country of an offence related to their professional conduct or the making of false statements or misrepresentations as to their qualifications; or                                                                                                  35

(ii)   been censured or subjected to any penalty in any country following disciplinary proceedings arising out of any conduct involving the making of false statements or misrepresentations;

(f)    any other criteria that will demonstrate that the bidders possess the professional and technical qualifications and competence, financial                                               40 resources, equipment and other physical facilities, managerial capability, experience, business reputation and personnel, needed to perform the procurement contract.

 

(3) Procuring entities shall not impose eligibility criteria that are unduly restrictive or designed to reduce competition, and shall prepare them for each                                               45 procurement requirement, taking into account the size, complexity and technical requirements of the proposed procurement contract.


 

(4) Any requirement imposed pursuant to this section shall be set out in the pre-qualification documents, if any, and in the solicitation documents, and shall apply equally to all bidders.

 

29    Domestic preference

 

5                 When evaluating bids, a procuring entity may give preference to bids from Zimbabwean or local suppliers and manufacturers, and, in relation to bids from foreign suppliers and manufacturers, shall take into account the extent to which Zimbabwean or local suppliers and manufacturers must participate in such bid, or be subcontracted to supply the bidded goods, construction works or services, in accordance with the

10      provisions of the Indigenisation and economic empowerment Act [Chapter 14:33]

(No. 14 of 2007):

 

Provided that any such preference shall be—

(a)    stated clearly in the bidding documents;  and

(b)   applied strictly in accordance with such procedures and criteria as may

15                                be prescribed or as may be stated in circulars issued by the Authority.

 

PART VI

 

methods of Procurement

 

30    Selection of procurement method

 

(1) Subject to this Act, a procuring entity shall employ the competitive bidding

20      method of procurement described in section 31, except where—

(a)    the restricted bidding method is to be employed in terms of section 32;

or

(b)   the direct procurement method is to be employed in terms of section 33;

or

25                     (c)    the request for quotations method is to be employed in terms of section

34;  or

(d)   consultancy services are to be procured, in which event the request for proposals method shall be employed in accordance with Part VIII;  or

(e)    procurement is effected under a joint venture agreement, in which event

30                                the method shall be as prescribed under section 100.

 

(2) When a method of procurement other than competitive bidding is used, the procuring entity shall include in the record of the procurement proceedings a written justification of the decision to utilise the procurement method, including the grounds for taking that decision.

 

35                     (3) Where a procuring entity enters into a framework agreement for any procurement—

(a)    all stages of the procurement up to the award of contract shall be effected in accordance with section 31 or 32;  and

(b)   all contracts based on the framework agreement shall be awarded in

40                                accordance with such procedures as may be prescribed.

 

 

31    Competitive bidding method

 

(1) The competitive bidding method of procurement entails a process in which— (a)  a bidding document is published in accordance with section 38;  and

(b)   all eligible and qualified bidders are permitted without discrimination to

45                                submit their bids;  and


 

(c)    all bids from eligible and qualified bidders are assessed according to the

same criteria;  and

(d)   subject to subsection (2), the bidding is held in one stage.

 

(2) Competitive bidding may be held in two stages, in accordance with prescribed procedures, where—                                                                                                                 5

(a)    it is not feasible to define fully the technical or contractual aspects of the

procurement to elicit competitive bids;  or

(b)   because of the complex nature of the procurement requirement, the procuring entity wishes to consider various technical or contractual solutions and to discuss them with bidders before deciding on the final                                                                           10 technical or contractual specifications.

 

(3) Where the procurement requirement is of particularly high value or complexity, competitive bidding may be preceded by prescribed pre-qualification procedures, with a view to identifying qualified bidders prior to the submission of bids.

 

32    Restricted bidding method                                                                           15

 

(1) The restricted bidding method of procurement entails a process in which the bidders are limited to those selected or invited by the procuring entity.

 

(2) The restricted bidding method of procurement may be used—

(a)    when the time and cost of considering a large number of bids is disproportionate to the estimated value of the procurement requirement;                                    20 or

(b)   where urgency renders impracticable the time-limit prescribed for the purpose of section 39 (“Bidding period”):

 

Provided that the urgency shall not be due to the procuring entitys

unjustifiable delay;  or                                                                         25

(c)    for procurement contracts with an estimated value that does not exceed

the prescribed threshold.

 

(3) Under the restricted bidding method of procurement—

(a)    the procuring entity shall invite bids from a standing list of qualified bidders established and maintained by the procuring entity in accordance                                     30 with the prescribed procedure;  and

(b)   in all other respects, the procedures for the single stage competitive bidding method shall be employed.

 

 

33    Direct procurement method

 

(1) The direct procurement method of procurement is one where a procuring    35

entity procures its requirement from one bidder or supplier without having received bids from other bidders.

 

(2) A procuring entity may use the direct procurement method—

(a)    where no responsive bids have been submitted in response to a competitive bidding procedure:     40

Provided that the procuring entity shall not substantially modify the requirements of the initial bid; or

(b)   where, for technical or artistic reasons, or for reasons connected with protection of exclusive rights, the contract can be performed only by a particular supplier and no reasonable alternative or substitute exists;  or                                                                         45


 

(c)    where, for reasons of extreme urgency not attributable to and unforeseen by the procuring entity, the procurement requirement cannot be obtained in time by means of competitive bidding procedures;  or

(d)   for additional supplies of goods or services by a supplier, where a change

5                                of supplier would cause problems of inter-changeability or incompatibility with existing equipment or discontinuity of services, which would cause significant inconvenience or substantial duplication of costs to the

procuring entity;  or

(e)    where a procuring entity procures a prototype or a first product or service

10                                from a research institute which is then developed at its request for a

particular procurement contract for research, experiment, study or original

development;  or

(f)    where additional services which were not included in an initial procurement contract but which were within the objectives of the original bidding

15                                documents have, through unforeseen circumstances, become necessary to complete the services described in those documents:

 

Provided that the total value of contracts awarded for the additional services shall not exceed fifty per centum of the amount of the original contract;  or

20                     (g)   for new services that repeat similar services provided under a procurement contract awarded following the competitive bidding method of procurement, where the procuring entity indicated in the original procurement notice that a direct procurement method might be used in awarding contracts for such new services;  or

25                     (h)   for acquisitions made under exceptionally advantageous conditions from unusual disposals such as legal forfeitures, liquidation, insolvency, judicial sale in execution or other forced sale or disposal;  or

(i)    for the procurement of immovable property;  or

(j)    for the procurement of spare parts of a proprietary nature.

 

30                     (2) Direct procurement shall be conducted in accordance with such procedures as may be prescribed.

 

 

34    Request for quotations method

 

(1) The request for quotations method of procurement entails a process in which the procuring entity solicits at least three competitive quotations for its procurement

35      requirement from reputable suppliers, and the procurement requirement is below the prescribed threshold.

 

(2) The request for quotations method of procurement shall be effected in accordance with such procedures as may be prescribed.

 

PART VII

 

40                                    Procedures for ComPetitive  and Restricted Bidding

 

35    Application of Part VII

 

This Part shall apply to procurement by the competitive and restricted bidding methods.

 

 

36    Form of communication

 

45                All communications between bidders and the procuring entity shall be in writing, and a procuring entity shall not entertain or respond to a communication from a bidder that is not in writing:


 

Provided that a procuring entity may comply with an oral or telephonic request for the supply of a document that is generally available to bidders.

 

37    Invitations to bid

 

A procuring entity shall invite bids—

(a)    through the publication of a bidding document;  or                                  5

(b)   from all bidders on the list of pre-qualified bidders, where pre-qualification

is used;  or

(c)    from all bidders on the standing list of qualified bidders established in

accordance with section 32, in the case of restricted bidding.

 

 

38    Contents and publication of procurement notices                                         10

(1) A bidding document containing the procuring entitys invitation to bid or, as the case may be, invitation to prequalify shall contain the following information— (a)         the identity and address of the procuring entity and the contact details of

the person from whom further information can be obtained;  and

(b)   a description of the procurement, including the place of delivery of goods   15 or services, the location of any construction works and the time within which the procurement requirement is to be provided;  and

(c)    how the bidding documents or, if applicable, the prequalification documents may be obtained and the price, if any, payable for them; and

(d)   the place at which and the time within which bids or applications to   20

prequalify must be submitted;  and

(e)    such other matters as may be prescribed or as may be set out in standard forms issued by the Authority.

 

(2) A procuring entity shall cause the bidding document containing its notice

of invitation to bid or to pre-qualify, as the case may be, to be published in the Gazette 25

and—

(a)    in at least one national newspaper of wide enough circulation to reach

sufficient bidders to ensure effective competition;  or

(b)   to the extent it is feasible to do so, on the Internet and on any website established by the Authority;                                                                                          30

and may cause the notice to be broadcast over radio or television, so as to reach as many potential bidders as possible.

 

(3) Where the estimated value of a procurement contract exceeds the prescribed financial threshold for international procurement, the procuring entity, in addition to complying with subsection (2), shall cause the bidding document containing its notice                                                                     35 of invitation to bid or pre-qualify to be—

(a)    published in at least two publications widely used for international trade or in other printed media with adequate circulation to attract foreign competitive bidders;  and

(b)   posted on widely-read internet websites;  and                                         40

(c)    posted in Zimbabwes foreign diplomatic and consular missions;

and shall conform with such other requirements as may be prescribed.

 

(4) For the purpose of ensuring wide competition, a procuring entity may send its notice of invitation to bid or pre-qualify directly to potential bidders, to chambers of commerce and to trade or professional associations after the notice has been published                                                                             45 in terms of subsection (2) or (3):


 

Provided that the procuring entity shall keep a record of any bidders to whom

the notice is sent directly, and shall file the record with the procurement documents.

 

39    Bidding period

(1) The bidding period shall commence on the date on which the bidding

5       document is published in the Gazette in terms of section 38(2), and shall end on the

date specified in that document or in a subsequent notice as the closing date for the

submission of bids.

 

(2) In determining the appropriate bidding period for any procurement, the procuring entity shall take into account—

10                     (a)    the time reasonably required for bidders to prepare their bids, taking into account the level of detail required and the complexity of the bids, including the time needed for any site visits and pre-bid meetings;  and

(b)   any need for bidders to submit authenticated legal documents or similar documents as part of their bids and the time required to obtain such

15                                documents;  and

(c)    the time potential bidders need to obtain the bidding document and to deliver and submit their bids to the procuring entity;  and

(d)   the time by which the procuring entity needs to be supplied with the procurement requirement:

 

20                     Provided that the bidding period for any procurement shall not be shorter than the period prescribed for that procurement or class of procurement, as the case may be.

 

 

40    Bidding documents

 

(1) For the purposes of any procurement, a procuring entity shall use the prescribed standard bidding documents, including any manuals or guidelines pertaining

25      thereto that may be issued by the Authority.

 

(2) A procuring entity shall ensure that its bidding documents are ready for distribution before the publication of the invitation to bid and shall provide them, promptly and without discrimination—

(a)    to all potential bidders that respond to the invitation to bid;  or

30                     (b)   in the case of competitive bidding with pre-qualification, to all bidders that have been prequalified; or

(c)    in the case of restricted bidding, to all the bidders that have been selected or invited to participate in the procurement.

 

(3) A procuring entity shall not charge more for bidding documents than the

35      cost of printing and distributing them, and where they are delivered by electronic means they shall be free of charge.

 

(4) Bidding documents shall provide bidders with all the information they need in order to submit responsive bids, and shall give them such particular information as may be prescribed.

 

40                     (5) A procuring entity shall record the name, postal address, telephone number and e-mail address of every bidder to whom an invitation to bid is issued, together with details of the bidders contact person, and shall file the record with the procurement documents.

 

(6) A procuring entity may establish an electronic system approved by the

45      Authority for the purpose of this section.


 

41    Clarification and modification of bidding documents

 

(1) A procuring entity shall respond promptly and in writing to a written request from a bidder for clarification of any bidding document, and the response shall be communicated simultaneously to all the bidders without identifying the bidder that requested the clarification and in a manner that does not disclose the identities of the                                                                                                  5 other bidders.

 

(2) For the purpose of clarifying bidding documents, a procuring entity may, before the close of the bidding period—

(a)    hold one or more meetings of bidders;  and

(b)   conduct one or more site visits;                                                             10

which all bidders shall be invited to attend.

 

(3) Any clarification of bidding documents in terms of subsection (1) or (2)

shall be effected within such period as may be prescribed.

 

(4) A procuring entity may modify its bidding documents at any time before the

end of the bidding period, but the modification shall be communicated simultaneously     15 to all the bidders and, where necessary, the procuring entity shall extend the bidding period to allow bidders to alter their bids to take the modification into account.

 

(6) A procuring entity may establish an electronic system approved by the

Authority for the purpose of this section.

 

 

42    Cancellation of procurement proceedings or rejection of bids                      20

 

(1) If possible a procuring entity shall avoid cancelling procurement proceedings, but may do so where—

(a)    the need for the procurement has ceased to exist or changed significantly;

or

(b)   insufficient funding is available for the procurement;  or                         25

(c)    there is a significant change in the technical details of the procurement requirement, or in the bidding conditions, contractual terms or other particulars, so that the procurement proceedings need to be recommenced; or

(d)   subject to subsection (5), insufficient, or no responsive bids are received;        30

or

(e)    there is evidence of collusion among bidders;  or

(f)    it is otherwise in the public interest.

 

(2) Whenever a procuring entity cancels procurement proceedings it shall promptly notify bidders accordingly, and cause a written statement detailing the reasons                                     35 for the cancellation to be filed with the record of the proceedings.

 

(3) Where a procuring entity cancels procurement proceedings before the end of the bidding period, it shall—

(a)    ensure that all hard-copy bids received are available for the bidders to collect for a period of thirty days following the announcement of the                                     40 cancellation;  and

(b)   destroy all bids after the thirty-day period referred to in paragraph (a).

 

(4) If so specified in the bidding documents, a procuring entity may reject all

bids at any time prior to their acceptance, where the bids are not substantially responsive,

or where there is evidence of lack of competition:                                                      45


 

Provided that the procuring entity shall notify all the bidders promptly of the rejection of their bids and, upon request by any such bidder, shall inform the bidder of the reasons for the rejection.

(5) Where no responsive bids are received or procurement proceedings are

5       otherwise unsuccessful, the procuring entity shall conduct a reasonably adequate investigation into the failure and record—

(a)    the reasons for the failure;  and

(b)   the course of action taken by the procuring entity;

and shall file the record with the procurement documents.

 

10                     (6) A procuring entity shall incur no liability towards bidders for action taken by it in terms of this section:

Provided that this subsection shall not relieve the procuring entity, or any of its officers, employee or agents, from liability for negligence or for anything done in bad faith.

 

15      43    Submission of bids or applications to pre-qualify

 

(1) Bids and applications to pre-qualify shall be submitted in writing, duly signed, before the end of the bidding period or, as the case may be, before the date stated in the invitation to pre-qualify as the date by which applications to pre-qualify must be submitted.

 

20                     (2) Bids and applications to pre-qualify may be submitted to the procuring

entity by hand or by post or by courier, at the option of the bidder:

 

Provided that, subject to any e-procurement policy laid down by the Authority, a procuring entity in its bidding documents may authorise other methods of submission of bids, such as by electronic mail, as long as the confidentiality and security of bids

25      are assured.

 

(3) Where a bid or application to pre-qualify is received by the procuring entity after the deadline specified in subsection (1)—

(a)    if the bid or application is received in electronic form, the procuring entity shall not consider it;

30                     (b)   if the bid or application is received in hard copy, the procuring entity shall not open it but instead shall permit the bidder to collect it within thirty days after the deadline, following which the procuring entity may return it or destroy it unopened.

(4) Bids shall remain valid for the period indicated in the bidding documents,

35      and if a bidder modifies or withdraws a bid while it is valid the bidder shall forfeit any

bid security he or she may have provided in respect of the bid.

 

(5) The period of validity of a bid may be extended only during that period and with the agreement of the bidder concerned, and a bidder that agrees to extend the period shall be entitled to a corresponding extension of any bid security he or she may

40      have provided.

 

44    Bid security

 

(1) Subject to subsection (2) and to any prescribed requirements or conditions, a procuring entity may require bidders to provide bid security in order to deter irresponsible bids and encourage bidders to fulfil the conditions of their bids.

 

45                     (2) A requirement for the provision of bid security—

(a)    shall be stated in the procurement documents;  and

(b)   shall be imposed equally on all bidders.


 

45    Amendment or withdrawal of bid

(1) A bidder may amend or withdraw his or her bid by submitting a notice of amendment or withdrawal to the procuring entity not later than the end of the bidding period.

 

(2) A notice of amendment or withdrawal of a bid—                                        5

(a)    shall comply with any directions that may be specified in the invitation

to bid; and

(b)   in the case of—

(i)   a hard-copy bid, shall be submitted in an envelope identifying

the invitation to bid and clearly labelled “Amendment of Bid or     10

Proposal” or “Withdrawal of Bid or Proposal”, as the case may be;

(ii)   a bid submitted as an electronic communication, shall comply with such requirements as may be prescribed or as the Authority may specify.

 

46    Opening of bids                                                                                                  15

 

(1) At the end of the bidding period, or as soon as possible thereafter, a procuring entity shall, at the time and place specified in the bidding documents, open all the bids it has received.

 

(2) The opening of bids shall be conducted in public and the procuring entity

shall invite bidders or their representatives to witness it.                                                    20

 

(3) At the opening of bids, an employee or agent of the procuring entity shall read aloud and record the following particulars of each opened bid—

(a)    the name of the bidder;  and

(b)   the total amount of the bid;  and

(c)    any discounts or alternatives offered by the bidder;  and                          25

(d)   whether or not bid security has been given, where that is required;  and

(e)    any essential supporting documents.

 

(4) Where bids have been received by electronic communication, the procedure to be followed at the opening of bids shall be as prescribed or as specified by the Authority.                   30

(5) A procuring entity shall ensure that a copy of the record is made available to any bidder that requests it.

 

(6) No decision regarding the disqualification or rejection of any bid shall be

taken or announced in the opening of bids.

 

(7) Following opening of bids, and until a preliminary decision on awarding the  35

procurement contract has been notified to the successful bidder, no bidder shall make any unsolicited communication to the procuring entitys procurement management unit or try in any way to influence the procuring entitys examination or evaluation of the bids.

(8) Where a bidder contravenes subsection (7), his or her bid shall be rejected   40

by the procuring entity.

 

 

47    Examination of opened bids

 

Following the opening of bids, the procuring entity shall first determine whether the bidders meet the qualification criteria, if any, contained in the bidding documents

and reject those that do not, and then shall examine the bids in order to determine     45

whether the bids are complete and responsive:


 

Provided that bidders shall be deemed to have met the qualification criteria if any default of compliance therewith relates simply to the failure to submit company registration or incorporation documents, credentials or other historic documents that can be readily availed or accessed.

 

5       48    Clarification of bids

(1) Subject to this section, a procuring entity may seek clarification from a

bidder of its bid, but the request and any response to it shall be made in writing.

 

(2) A request for clarification in terms of subsection (1) shall not seek, and the

bidder shall not be permitted to—

10                     (a)    amend the bid price, except to correct arithmetical errors;  or

(b)   change the substance of the bid;  or

(c)    alter substantially anything that is a deciding factor in the evaluation of the bid.

 

(3) Any clarification received from a bidder which is not in response to a request

15      in terms of subsection (1) shall not be taken into account in the evaluation of the bid.

 

(4) If a bidder fails to reply to a request for clarification in terms of subsection

(1), the procuring entity may reject his or her bid.

 

 

49    Rejection of bids

 

(1) A procuring entity shall reject a bid if it finds that information submitted

in the bid—

20                     (a)    is materially false or misleading;  or

(b)   is inaccurate or incomplete to an extent that makes it impossible to evaluate

the bid.

 

(2) This section shall not be construed as limiting any other provision of this

Act that requires or permits a procuring entity to reject a bid.

 

 

25      50    Evaluation of bids

 

(1) having examined the opened bids in terms of section 47 and obtained any necessary clarification in terms of section 48, the procuring entity shall proceed to evaluate those that have not been rejected, in order to provide an equal basis for comparing them.

 

30                     (2) The evaluated price for bids shall be determined by—

(a)    taking the bid prices, as read out when the bids were opened;  and

(b)   correcting any arithmetic errors, in accordance with section 51 and the methodology, if any, stated in the bidding documents;  and

(c)    making adjustments for any non-material non-conformity, error or

35                                omission in accordance with section 51;  and

(d)   converting all bids to a single currency, using the currency and the source

and date of exchange rate indicated in the bidding documents;  and

(e)    applying any domestic preference in accordance with section 29 and any

prescribed criteria or weighting.

 

40                     (3) In addition to price, a procuring entity may, subject to subsection (4), evaluate bids according to such of the following criteria as are relevant—

(a)    costs of inland transport and insurance to the specified site;

(b)   any payment schedule offered by the bidder;


 

(c)    the delivery time;

(d)   operating costs, efficiency and compatibility of equipment that constitutes

or forms part of the procurement requirement;

(e)    availability of service and spare parts and related training;

(f)    safety, environmental and social benefits;                                                5

(g)   cost-effectiveness based on life-cycle;

(h)   costing, including costs relating to acquisition, costs of use such as consumption of energy and other resources, maintenance costs, and end of life costs such as environmental rehabilitation, collection and recycling

costs;                                                                                                 10

(i)    any other criteria that may be prescribed.

 

(4) Criteria referred to in subsection (3) that are to be used in the evaluation of bids shall whenever possible—

(a)    be quantified in monetary terms;  or

(b)   be expressed in the form of pass or fail requirements;                              15

and shall be set out in full in the procurement notice or in the bidding documents:

 

Provided that, where it is not possible so to quantify or express those criteria,

the procurement notice or the bidding documents shall either—

(a)    specify the relative weighting to be given to each of the criteria, expressed

by providing for a range with an appropriate maximum spread;  or           20

(b)   specify the criteria in descending order of importance.

 

 

51    Correction of errors and omissions in bids

 

(1) Where a bid is substantially responsive, the procuring entity may waive,

clarify or correct any non-conformity, error or omission in it which does not constitute

a material deviation:                                                                                               25

 

Provided that the procuring entity shall quantify the non-conformity, error or omission in monetary terms to the extent that this can be done in the bidding document.

 

(2) A procuring entity may correct purely arithmetical errors in bids in accordance with the procedure stated in the bidding document:

 

Provided that the procuring entity shall forthwith notify the bidder concerned   30

of any such correction and request the bidder to agree to it in writing, and if the bidder does not do so without delay—

(a)    the procuring entity shall reject the bid;  and

(b)   any bid security provided by the bidder may be forfeited.

 

 

52    Prohibition of negotiation regarding bids                                                     35

 

(1) Subject to subsection (2), except in the case of direct procurement there shall be no negotiation between a procuring entity and a bidder with respect to a bid submitted by the bidder.

 

(2) If the price of the lowest evaluated responsive bid exceeds the budget for

the procurement contract by an amount which cannot be met through an increase in   40

the budget, the procuring entity may— (a)          request new bids;  or

(b)   negotiate with the lowest evaluated bidder to try to obtain a reduction of  the  contract price through reducing the scope of the procurement requirement:                 45


 

Provided that in no case shall the reduction in scope affect the

technical specifications required by the bidding documents.

 

 

53    Confidentiality

A procuring entity shall take all necessary steps to ensure that information relating


5       to—


 

(a)   the content of pre-qualification applications and bids;  or

(b)   the examination, clarification, evaluation and comparison of bids;


is not disclosed to suppliers, contractors, service providers or consultants or to any

other person not officially involved in the examination, evaluation, comparison or

10      acceptance of bids.

 

 

54    Special Procurement Oversight Committee for certain especially sensitive or especially valuable contracts

(1) In this section—

“Accountant-General” means the person appointed as such in terms of section

15                                9 of the Public Finance Management Act [Chapter 22:19] (No. 11 of

1999);

“especially sensitive”, in relation to a procurement contract or exempted contract, means a contract of such a nature or description as may be prescribed or as the Minister may indicate in writing to the Committee,

20                                being one that has or may have a significant impact—

(a)   upon the national economy or the economic interests of the State;

or

(b)   in the sphere of—

(i)    the States foreign or international relations, or

25                                         (ii)   the public interest, national defence or national security;

“especially valuable”, in relation to a procurement contract or exempted contract, means a procurement contract whose threshold exceeds by a prescribed margin any established prescribed threshold above which certain procurement proceedings may be applied under this Act;

30                     “exempted contract” means a contract in the nature of a procurement contract involving the expenditure of public funds or the use of State resources that is exempted from the scope of this Act by virtue of section 3(2), (3), (6) or (7);

“Principal Director Public Works” means the person employed as such in the

35                                Ministry responsible for public works;

“procurement contract by a joint venturemeans a contract referred to in section

100 (5) (c);

“procurement record” means the record of procurement proceedings kept in

terms section 69;

40                     “responsible officer”, in relation to the State party to an exempted contract, means the accounting officer of the Ministry or entity as defined in Public Finance Management Act [Chapter 22:19] (No. 11 of 1999) or other person who is empowered to sign the contract on behalf of the State;

“Special Procurement Oversight Committeeor “Committeemeans the

45                                committee constituted in terms of subsection (2);

“scrutinise”, in relation to the scrutinising by the Committee of the proposed award of—

(a)   a procurement contract, means to ensure—


 

(i)    that that all the processes, procedures and formalities required to be undertaken in terms of this Act in order to bring the procurement contract into being before its award have been substantially complied with and have not been omitted;  and

(ii)   conformity otherwise with the applicable provisions of the    5

Public Finance Management Act [Chapter 22:19] (No. 11 of

2009) and any other enactment securing public and financial

accountability;  and

(iii)  generally that the objectives of the Act in relation to public procurement as outlined in section 4(1) have, to the fullest                                       10 possible extent, been given effect to with reference to the proposed award;

(b)   an exempted contract, means to ensure—

(i)    that the objectives of the Act in relation to public procurement

as outlined in section 4(1) have, to such extent as may be    15

applicable to the exempted contract in question, been given

effect to with reference to the proposed award;  and

(ii)   conformity otherwise with the applicable provisions of the

Public Finance Management Act [Chapter 22:19] (No. 11 of

2009) and any other enactment securing public and financial     20

accountability;

(c)   a procurement contract by a joint venture, means to ensure—

(i)    that the proposed award complies with the criteria set forth in section 100 (5)(c);  and

(ii)   conformity otherwise with the applicable provisions of the   25

Public Finance Management Act [Chapter 22:19] (No. 11 of

2009) and any other enactment securing public and financial

accountability.

 

(2) For the purposes of scrutinising especially sensitive or especially valuable

procurement contracts and exempted contracts, there is hereby constituted an Special    30

Procurement Oversight Committee, which shall report to the Minister and the Authority, and which shall consist of—

(a)    the Attorney-General (who shall be the Chairperson of the Committee), or his or her authorised delegate employed in the Attorney-Generals Office whose seniority shall be that of a Director or above in the Civil Services                                                                   35 ranking of grades;  and

(b)   the Auditor-General, or his or her authorised delegate employed in the Audit Office whose seniority shall be that of a Director or above in the Civil Services ranking of grades;  and

(c)    the Accountant-General, General (who shall be the deputy chairperson    40 of the Committee and shall act as chairperson whenever the Attorney- General is represented in the committee by his or her delegate), or his or

her authorised delegate employed in his her department whose seniority shall be that of a Director or above in the Civil Services ranking of grades;

and                                                                                                    45

(d)   the Principal Director Public Works, or his or her authorised delegate employed in his her department whose seniority shall be that of a Director or above in the Civil Services ranking of grades.

 

(3) The Chief Executive Officer shall provide secretarial services to the

Committee and, at the invitation of the Chairperson of the Committee, the Chief    50

Executive Officer shall attend any meeting of the Committee.


 

(4) Within the time referred to in subsection (5)— (a)       the Minister may—

(i)   on his or her own initiative or on the advice of the Accountant-General,

in relation to any procurement contract or procurement contract by

5                                          a joint venture that the Minister or the Accountant-General deems to be especially sensitive or especially valuable despite no prescription being made to that effect governing the contract in question;

(ii)   in relation to any exempted contract that the Minister deems to be

especially sensitive or especially valuable;

10                     (b)   the Accountant-General shall,, in relation to any procurement contract or procurement contract by a joint venture whose value or subject-matter falls within the meaning of “especially sensitiveor “especially valuable” as prescribed;

convene on not less than forty-eight hourswritten notice to the members of the

15      Committee a meeting of the Committee to scrutinise the proposed contract award at a

time and place specified by the Minister or the Accountant-General in his or her notice.

 

(5) A meeting of the Committee must be convened, in the case of—

(a)    an especially sensitive or especially valuable procurement contract, as soon as possible after the evaluation of the bids in terms of section 54(1)

20                                or 59(12), and in any event before the notification of the successful bidder;

or

(b)   an exempted contract or procurement contract by a joint venture that is deemed to be especially sensitive or especially valuable, at any time before the acceptance of the contract terms is communicated to contractor.

 

25                     (6)  For the purpose of scrutinising—

(a)    procurement proceedings for a contract that is or is deemed to be especially sensitive or especially valuable, the Chief Executive Officer shall avail to the Committee in advance—

(i)   the procurement record relating to those proceedings;  and

30                                (ii)   such other documents or information as the Chairperson may reasonably require for the purposes of the scrutiny;

(b)   an exempted contract or procurement contract by a joint venture that is or is deemed to be especially sensitive or especially valuable, the responsible officer shall avail to the Committee in advance such documents or

35                                information as the Chairperson may reasonably require for the purposes of the scrutiny.

 

(7) Any refusal on the part of any person to co-operate, to the best of his or her ability, with the Committees request in terms of subsection (6)(a)(ii) or (b), whether communicated directly by the Chairperson of the Committee or through the Chief

40      Executive Officer, is deemed to be an offence referred to in section 96(4) as if for the

word “investigator” the word “Committee” is substituted therefor.

 

(8) Subject to subsection (9), all questions or matters which are required to be

decided by the Committee shall be decided by a majority of the members thereof:

 

Provided that, where the opinions of the members are equally divided on any

45      question or matter, the decision of the Chairperson or member acting as the Chairperson shall be the decision of the Committee.

(9) Any matter of law arising for decision by the Committee and any question as to whether a matter for decision is a matter of fact or a matter of law shall be decided by the Attorney-General or his or her delegate.


 

(10) The Committee has the following powers—

(a)    to adjourn and reconvene its meetings to enable it to complete the scrutiny of any proposed award of a procurement contract:

Provided that the Committee must endeavour to complete its review in a single sitting, failing which it must complete its review by                                          5 the third sitting;

(b)   to invite any person to attend a meeting of the Committee, where the Committee considers that the person has special knowledge or experience in any matter being considered by the Committee;

(c)    in relation to the award of a proposed procurement contract that is or is    10

deemed to be especially sensitive or especially valuable—

(i)   to certify to the best of its knowledge and ability that the proposed award withstands scrutiny, and to recommend that the procurement contract be awarded;  or

(ii)   with respect to defective procurement proceedings—                      15

A.    to refer any matter back to the procuring entity for corrective action to be taken; or

B.    to cancel the procurement proceedings and order that they be recommenced;

or                                                                                               20

(iii)   to order the Authority to initiate an investigation in terms of Part XIII, whether or not concurrently with any other action the Committee may order under subparagraph (ii);  or

(d)   to recommend to the Minister the acceptance (unconditionally or subject

to such conditions as the Committee may specify) of any proposed      25 exempted contract or procurement contract by a joint venture that withstands scrutiny, or the rejection of any proposed exempted contract or procurement contract by a joint venture for failure to withstand scrutiny;

(e)    to deem any proposed contract to be rejected because not enough information or documentation in relation to the proposal was availed to                          30 the Committee to enable it to properly scrutinise it (in which event the Minister or the Accountant-General, as the case may be, may resubmit

the proposal to the Committee within the period of validity of the bid concerned).

(11) The Committee shall incur no liability towards bidders or other persons    35

for action taken by it in good faith in terms of this section.

 

55    Contract award

(1) Having evaluated the bids, a procuring entity shall award the procurement contract to the bidder that—

(a)    submitted the lowest bid which meets the price and non-price criteria     40

specified in the bidding documents; or

(b)   offers the most economically advantageous tender.

(2) Before the expiry of the period of bid validity, the procuring entity shall

notify—

(a)    the successful bidder of the proposed award and of the time within which    45

the contract must be signed, subject to any intervening challenge filed in

accordance with Part X;  and

(b)   the other bidders of the name and address of the proposed successful bidder and the price of the contract;

and the contract shall not be signed until at least fourteen days have passed following    50

the giving of that notice.


 

(3) If the successful bidder fails to sign a written contract when required to do so or fails to provide, when required, any performance security before the time stated in the bidding documents for the signing of the contract, the procuring entity shall accept the next ranked bidder from among the remaining bids that have not been rejected, and

5       shall thereupon comply with subsection (2) in relation to that bid:

 

Provided that the procedure set out in this subsection may be applied only to the next two ranked bidders after the original successful bidder, and only to the extent that the bids can be economically justified.

 

(4) Procurement contracts shall be signed by the procuring entitys accounting

10      officer or a person delegated by him or her.

 

 

56    Performance security

 

In such cases as may be prescribed, a procuring entity may require the successful bidder, before signing the procurement contract, to provide a performance security:

 

Provided that any such requirement shall be stated in the bidding documents

15      and the procurement contract.

 

PART VIII

 

Procurement of Consultancy  Services

 

57    Interpretation in and application of Part VIII

 

(1) In this Part—

20                     “community service organisationmeans a non-profit non-governmental

organisation concerned with local issues and community needs;

“financial bid” means a bid, or that part of a bid, which sets out the price to be charged by a firm for the service to be provided under the bid;

 

“firmmeans a person or association of persons providing consultancy services;

25                     “technical bid” means a bid, or that part of a bid, which sets out the nature of the service to be provided under the bid and the manner in which it is to be provided.

 

(2) This Part shall apply to the procurement of consultancy services.

 

 

58    Request for proposals method

 

30                     (1) For the procurement of consultancy services, procuring entities shall employ the request for proposals method described in this section.

 

(2) Subject to subsection (3), a procuring entity shall, as part of its pre- qualification procedures, prepare a short-list of not fewer than three and not more than six firms which, so far as the procuring entity can ascertain—

35                     (a)    are of the same category and similar capacity and business objectives;

and

(b)   have the capacity to perform the required services;

and shall provide those firms with the request for proposals for services.

(3) For the purpose of preparing the short-list referred to in subsection (2)—

40                     (a)    where the estimated value of the procurement exceeds the prescribed threshold, the procuring entity shall seek expressions of interest by publishing a notice in an appropriate publication such as a local or international newspaper of wide circulation or on the Internet, or in a relevant trade publication or technical or professional journal;


 

(b)   where the estimated value of the procurement is less than the prescribed threshold, the procuring entity may prepare the short-list from market knowledge or other sources of information:

Provided that in such cases as may be prescribed or when so directed by the Authority, the procuring entity shall also advertise the                            5 procurement in the prescribed manner.

(4) The request for proposals for services shall provide short-listed bidders with all the information they need to enable them to participate in the procurement proceedings and submit responsive bids, and in particular shall contain the following information—                                                   10

(a)    the name and address of the procuring entity;  and

(b)   the nature, time-frame and location of the services to be provided;  and

(c)    the consultants terms of reference, that is to say his or her duties and the manner in which he or she is to provide the services;  and

(d)   criteria to be used in evaluating and comparing bids, and their relative   15

weights as compared to price;  and

(e)    the terms of the procurement contract, and the manner in which it will enter into force;  and

(f)    instructions for the preparation and submission of bids, and the deadline

for their submission;  and                                                                     20

(g)   the procedure for the final selection of bids;  and

(h)   notice of any rules, restrictions or precautions against conflicts of interest, fraud or corruption, including potential debarring of persons who contravene those rules, restrictions or precautions from participating in future procurements;  and                                      25

(i)    any other information that may be prescribed or stated in standard bidding documents issued by the Authority.

 

59    Methods of soliciting, evaluating and selecting bids

 

Under the request for proposals method of procurement, the procuring entity shall solicit and evaluate bids and select the successful bid in the following ways—                                                       30

(a)   whenever practicable and appropriate, by the quality and cost based selection method, set out in section 60;  or

(b)   where the service sought is simple and precisely defined and the budget is fixed, by the selection under fixed budget method set out in section 61;

or                                                                                                      35

(c)    where the service sought is of a standard or routine nature and well- established practices and standards exist, and in which the cost is small, by the least-cost selection method set out in section 62;  or

(d)   where the service sought is of a highly technical nature, by the quality-

based selection method set out in section 63;  or                                     40

(e)    where involvement and knowledge of community needs, local issues and community participation are important in the preparation, implementation and operation of a community development project, by the selection amongst community service organisations method set out in section 64;

or                                                                                                      45

(f)    in exceptional cases, such as—

(i)   for services that continue a previous completed assignment;  or

(ii)   for very small assignments;  or