PUBLIC PROCUREMENT ACT

Arrangement of Sections

   Section

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

   3.   Application

   4.   Approval required for international agreements on procurement

PART II
THE ZAMBIA PUBLIC PROCUREMENT AUTHORITY

   5.   Continuation and renaming of Zambia National Tender Board

   6.   Powers and functions of Authority

   7.   Director-General of Authority

   8.   Secretary and other staff

   9.   Inspectorate unit

   10.   Co-operation with other authorities

PART III
PROCURING ENTITIES

   11.   Composition of procuring entities

   12.   Functions of procuring entities

   13.   Duties of Controlling Officer and chief executive officer

   14.   Establishment of Procurement Committees

   15.   Powers and functions of Procurement Committee

   16.   Composition of Procurement Committees

   17.   Tenure of office of Procurement Committee

   18.   Proceedings of Procurement Committee

   19.   Subcommittees of Procurement Committee

   20.   Establishment of Procurement Units

   21.   Functions of user departments

   22.   Procurement authorisation and levels of authority

   23.   Procurement of common use items

   24.   Use of procurement agent or procurement service provider

PART IV
METHODS OF PROCUREMENT

   25.   Open bidding

   26.   National and international bidding

   27.   Open selection

   28.   National and international selection

   29.   Limited bidding

   30.   Limited selection

   31.   Simplified bidding

   32.   Direct bidding

   33.   Force account

   34.   Purchases from other procuring entities

   35.   Procurement of infrastructure for private financing and award of concessions

   36.   Community participation in procurement

PART V
GENERAL PROCUREMENT RULES

   37.   Participation and non-discrimination

   38.   Records of procurement

   39.   Communications

   40.   Confidentiality

PART VI
PROCUREMENT PROCESS

   41.   Initiation of procurement requirements

   42.   Procurement planning

   43.   Choice of procurement method

   44.   Statement of procurement requirements

   45.   Solicitation documents

   46.   Selection of bidders

   47.   Invitation of bids

   48.   Receipt of bids

   49.   Opening of bids

   50.   Evaluation

   51.   Negotiations

   52.   Decision to award contract

   53.   Publication of best evaluated bidder

   54.   Award of contract

   55.   Contract

   56.   Information of unsuccessful bidder

   57.   Contract management

   58.   Amendment of contract

   59.   Deviations

   60.   Accreditation of alternative procurement system

PART VII
BIDDERS AND SUPPLIERS

   61.   Eligibility of bidders

   62.   Qualification of bidders

   63.   Preference and reservation

   64.   Supplier databases or lists

   65.   Suspension

   66.   Grounds for suspension

   67.   Permanent bar of bidder or supplier

   68.   Inducement by bidder or supplier

   69.   Appeal against suspension

PART VIII
ARBITRATION

   70.   Review of decision by procuring entity

   71.   Dispute to be determined by arbitration

PART IX
GENERAL PROVISIONS

   72.   Code of conduct

   73.   Restriction on public officers

   74.   Conduct of bidder and supplier

   75.   Offences by public officers and other persons

   76.   Responsibilities of Controlling Officers and chief executive officers

   77.   General penalty

   78.   Offences committed by body corporate or un-incorporate body

   79.   Compensation

   80.   Transfer of functions of procuring entity to other body

   81.   Circulars and publications

   82.   Regulations

   83.   Repeal of Cap. 394

   84.   Savings and transitional provisions

      FIRST SCHEDULE

      SECOND SCHEDULE

AN ACT

to continue the existence of the Zambia National Tender Board and re-name it as the Zambia Public Procurement Authority; revise the law relating to procurement so as to ensure transparency and accountability in public procurement; regulate and control practices relating to public procurement in order to promote the integrity of, fairness and public confidence in, the procurement process; repeal and replace the Zambia National Tender Board Act, 1982; and provide for matters connected with or incidental to the foregoing.

[26th September, 2008]

Act 12 of 2008,

Act 15 of 2011.

PART I
PRELIMINARY

1.   Short title

This Act may be cited as the Public Procurement Act.

2.   Interpretation

In this Act, unless the context otherwise requires—

“approvals authority” means the body or individual with authority to grant prior authorisation of certain key steps in the procurement process in accordance with section 22;

“Authority” means the Zambia Public Procurement Authority referred to under section 5;

“best evaluated bidder” means the bidder ranked as first, following the application of the specified evaluation methodology and criteria;

“bid” means an offer to provide goods, works or services submitted by a bidder in response to an invitation from a

procuring entity and includes a tender, proposal, quotation and, where applicable, an application to pre-qualify;

“bidder” means a person or group of persons that offers to provide goods, works or services in response to an invitation from a procuring entity and includes, where applicable, a potential bidder and applicant to pre-qualify;

“Board ‘‘ means the Board of Directors of the Authority;

“Central Tender Committee” means the Central Tender Committee established under paragraph 2 of the Second Schedule;

“chief executive officer” means the chief executive officer of a parastatal, statutory body or a local authority;

“citizen bidder or supplier” means a citizen-empowered company, citizen-influenced company or citizen-owned company;

“citizen-empowered company” means a company where twenty-five to fifty percent of its equity is owned by citizens, and is licenced to undertake business activities in Zambia;

“citizen-influenced company” means a company where five to twenty-five percent of its equity is owned by citizens and in which citizens have significant control of the management of the company, and is licensed to undertake business in Zambia;

“citizen-owned company” means a company where at least fifty point one percent of its equity is owned by citizens and in which the citizens have significant control of the management of the company, and is licensed to undertake business in Zambia;

“close relative’’ means a spouse, child, sibling, uncle, cousin, aunt, niece, nephew, parent or a child of a spouse, child, sibling or parent;

coercive practices” means harming or threatening to harm, directly or indirectly, a person, or a person’s property, to influence that person’s participation in a procurement process or affect the execution of a contract;

“collusive practices” means a scheme or arrangement between two or more bidders, with or without the knowledge of the procuring entity, designed to establish bid prices at artificial, non-competitive levels;

“consulting services” means services of an intellectual or advisory nature, the delivery of reports, drawings or designs including engineering designs, supervision, accountancy, auditing, financial services, procurement services, training and capacity building services, management advice, policy studies and advice, assistance with institutional reforms and software development;

“contract” means an agreement between a procuring entity and a supplier for the provision of goods, works or services;

“Controlling Officer” has the meaning assigned to it in the Public Finance Act, 2004;

“corrupt practice” means the offering, giving, receiving or soliciting, directly or indirectly, of anything of value to influence the action of a public officer in the procurement process or in contract execution;

“direct bidding” means a procurement method where a bid is obtained directly from a single bidder, without competition;

“Director-General” means the person appointed as such under section 7;

“due diligence” means the assessment of a bidder or supplier’s technical, financial and management capabilities and the bidder’s or supplier’s governance record to effectively execute a contract;

“e-procurement” means the process of procurement using the internet or other information and communication technologies;

“foreign bidder or supplier” means a bidder or supplier who is not licensed to undertake business activities in Zambia;

“fraudulent practice” means a misrepresentation or omission of facts in order to influence a procurement process or the execution of a contract;

“goods” means objects of every kind and description including raw materials, products, equipment, objects in solid, liquid or gaseous form, electricity, and works and services incidental to the supply of the goods if the value of those incidental works and services does not exceed that of the goods themselves;

“Government agency” has the meaning assigned to it in the Public Finance Act, 2004;

“interim period” means the period referred to in the Second Schedule during which the provisions of that Schedule shall apply;

“international competitive bidding” means bidding open to all bidders, including citizens, local and foreign bidders;

“legal practitioner” has the meaning assigned to it in the Legal Practitioners’ Act;

“limited bidding” means a procurement method for goods, works and non-consulting services where bids are obtained by direct invitation to a shortlist of bidders, without open advertisement;

“limited selection” means a procurement method for consulting services where bids are obtained by direct invitation to a shortlist of bidders, without open advertisement;

“local authority” means a city, municipal or district council established under the Local Government Act;

“local bidder or supplier” means a bidder or supplier who is licensed to undertake business activities in Zambia, but who is not a citizen supplier;

“national competitive bidding” means bidding which is limited to citizen and local bidders;

“non-consulting services” means services other than consulting services, for the carrying out of work of any kind, with or without the use of vehicles, machinery or equipment or the provision of operators, technicians or drivers;

“open bidding” means a procurement method for goods, works and non-consulting services which is open to participation on equal terms by all eligible bidders through advertisement of the opportunity;

“ open selection” means the procurement method for consulting services which is open to applications for short listing on equal terms by all bidders through advertisement of the opportunity;

“parastatal body” means a statutory corporation or body, a local authority or a company in which the Government has a majority or controlling interest;

“procurement” means acquisition by purchase, rental, lease, hire purchase, licence, tenancy, franchise or any combination thereof;

“Procurement Committee” means the Committee established under section 14;

“Procurement Unit” means the division or department in each procuring entity responsible for the execution of the procurement function;

“procuring entity” means a Government agency, parastatal body or any other body or unit established and mandated by Government to carry out procurement using public funds;

“post-qualification” means the conduct of due diligence to determine whether the bidder is qualified to perform the contract effectively;

“public funds” has the meaning assigned to it in the Public Finance Act, 2004;

“public office” includes an office the emoluments of which are a charge on or paid out of the revenues of the Republic;

“public officer” means a person holding or acting in any public office;

“repealed Act” means the Zambia National Tender Board Act, 1982;

“services” means any object of procurement other than goods or works, which involve the furnishing of labour, time or effort;

“simplified bidding” means a procurement method which compares quotations from a number of bidders;

“solicitation document” means a bidding document, a request for proposals, request for quotation and, where applicable, a pre-qualification document or document of any kind issued by a procuring entity, inviting bidders to participate in procurement proceedings;

“supplier” means a contractor, consultant, service provider or a natural person or incorporated body that is party to a contract with a procuring entity for the provision of goods, works or services;

“user department” means any department, division, branch, section or project unit of the procuring entity which initiates procurement requirements and is, or represents, the end- user of the goods, works or services; and

“works” means all work associated with the construction, re-construction, demolition, repair or renovation of a building, road, structure or works, such as site preparation, excavation, erection, building, installation of equipment or materials, decoration and finishing, as well as services incidental to construction such as drilling, mapping, satellite photography, seismic investigations and similar services provided pursuant to a contract, if the value of those services does not exceed that of the works themselves.

3.   Application

   (1) This Act applies to all procurement carried out by procuring entities using public funds, except as otherwise provided under sub-section (2).

   (2) A procuring entity may, where any procurement involves or relates to the security, defence or international relations of the Republic, modify the application of the rules and procedures of procurement set out in this Act only to the extent necessary to protect the public interest and in accordance with such procedures as the Authority may determine.

   (3) Where a procuring entity undertakes any procurement that is related to or involves the security, defence or international relations of the Republic, the procuring entity shall—

      (a)   agree with the Authority on the type of goods, works or services to be subject to modified rules and procedures of procurement;

      (b)   agree with the Authority on the modifications to be made to the rules and procedures provided for in this Act and to be applied to the goods, works and services referred to under paragraph (a); and

      (c)   apply the rules and procedures provided for in this Act to the procurement of goods, works and services in a manner that is not prejudicial to the security, defence and international relations of the Republic.

   (4) The type of goods, works and services subject to modified rules and procedures of procurement and the modified rules and procedures of procurement referred to in sub-sections (2) and (3) shall be reviewed and updated by the procuring entity and the Authority on an annual basis or as need arises.

   (5) Any procurement that is subject to the modified rules and procedures of procurement under sub-section (2) shall be subject to classified audit.

4.   Approval required for international agreements on procurement

   (1) A procuring entity shall, before entering into any international agreement relating to procurement, obtain the approval of the Authority, and the advice of the Attorney-General.

   (2) Any agreement purportedly entered into without the approval of the Attorney-General is void.

PART II
THE ZAMBIA PUBLIC PROCUREMENT AUTHORITY

5.   Continuation and renaming of Zambia National Tender Board

   (1) The Zambia National Tender Board established under the repealed Act shall continue to exist as if established under this Act and for purposes of this Act is hereby renamed the Zambia Public Procurement Authority.

   (2) The Authority shall be a body corporate with perpetual succession and a common seal, capable of suing and of being sued in its corporate name, and with power, subject to the provisions of this Act, to do all such acts and things as a body corporate may, by law, do or perform.

   (3) The provisions of the First Schedule apply to the Authority.

6.   Powers and functions of Authority

   (1) The Authority shall be an independent regulatory body with responsibility for policy, regulation, standard setting, compliance and performance monitoring, professional development and information management and dissemination in the field of public procurement.

   (2) Without prejudice to the generality of sub-section (1), the functions of the Authority are to—

      (a)   regulate the procurement of goods, works and services by procuring entities and ensure transparency and accountability in public procurement;

      (b)   monitor compliance with this Act and the procurement performance of the procuring entities and make recommendations to the Minister on the performance and functioning of the public procurement system;

      (c)   issue standard bidding documents and other standard procurement documents for use by procuring entities;

      (d)   advise the Government and procuring entities on procurement policy and other matters relating to public procurement;

      (e)   consider applications for deviations to public procurement processes, methods and rules and for the accreditation of alternative procurement systems;

      (f)   commission and undertake investigations in public procurement matters and institute procurement audits;

      (g)   promote economy, efficiency and maximum competition to ensure value for money in the use of public funds;

      (h)   promote private sector participation, through fair and non-discriminatory treatment of bidders;

      (i)   formulate preference and reservation schemes to promote the economic development of citizen bidder and suppliers in collaboration with the appropriate Government institutions;

      (j)   maintain a register of bidders and suppliers who are suspended or debarred from participating in public procurement;

      (k)   coordinate and promote capacity building and professional development in the public procurement system;

      (l)   monitor the execution of contracts entered into by procuring entities;

      (m)   organise and maintain systems for the management of procurement data, statistics and information and for the publication of data on public procurement opportunities, contract awards and other information of public interest; and

      (n)   do all such other acts and things as are incidental to the foregoing or conducive to the attainment of the objectives of the Authority.

   (3) The Authority may—

      (a)   collect any data and report from procuring entities for purposes of this Act;

      (b)   access information, documents, records and reports of a procuring entity in respect of any public procurement process;

      (c)   access, at any reasonable time, the premises of any procuring entity whose procurement is being monitored and request for any relevant information from any person responsible for the financial administration of the procuring entity; and

      (d)   suspend or debar any bidder or supplier from participating in public procurement in accordance with the provisions of this Act.

   (4) Subject to sub-section (5), the authority shall not access any information, document, record or report, or enter upon any premises of the Zambia Defence Force or the Zambia Security Intelligence Service.

   (5) The Authority may, where the circumstances of a procurement audit so require, with the written consent of the President, access any information, document, record or report, or enter upon any premises, of the Zambia Defence Force and the Zambia Security Intelligence Service.

7.   Director-General of Authority

   (1) The President shall appoint, on such terms and conditions as the President may determine, a Director-General who shall be the chief executive officer of the Authority.

   (2) The office of Director-General shall be an office in the public service.

   (3) The Director-General shall attend all meetings of the Board, and shall be entitled to address such meetings, but shall not vote on any matter under discussion:

Provided that the Board may, for good cause, request the Director-General to withdraw from any meeting of the Board.

8.   Secretary and other staff

   (1) There shall be a Secretary to the Board who shall be appointed by the Board on such terms and conditions as the Board may determine.

   (2) The Board may appoint, on such terms and conditions as it may determine, such other staff as it may consider necessary for the performance of its functions under this Act.

9.   Inspectorate unit

   (1) In order to ensure due compliance with the provisions of this Act, the Board shall establish under the general supervision of the Director-General, an inspectorate unit which shall monitor, in accordance with the rules or regulations made under this Act, the procurement performance of procurement entities.

   (2) The Board may appoint such inspectors and other staff to the inspectorate unit as may be necessary for the performance of its functions under this Act.

10.   Cooperation with other authorities

   (1) The exercise by the Authority of its functions under this Act shall not affect in any manner any functions exercised by other authorities under any other written law.

   (2) The Authority shall co-operate with other organs exercising oversight functions over public procurement in Zambia and may, for that purpose, establish mechanisms for sharing information and working jointly with those organs.

   (3) A procuring entity and any person involved in public procurement shall co-operate with the Authority and any other authority exercising monitoring and oversight functions over public procurement.

PART III
PROCURING ENTITIES

11.   Composition of procuring entities

For the purposes of this Act, a procuring entity shall consist of—

      (a)   a Controlling Officer or Chief Executive Officer;

      (b)   a Procurement Committee;

      (c)   a Procurement Unit; and

      (d)   user departments.

12.   Functions of procuring entities

   (1) A procuring entity shall be responsible for the management of all procurement activities within its jurisdiction in accordance with this Act.

   (2) A procurement shall only be carried out by a person qualified and knowledgeable in procurement in accordance with the Zambia Institute of Purchasing and Supply Act, 2003.

[S 12(2) subs by s 2 of Act 15 of 2011.]

   (3) A person who contravenes sub-section (2) commits an offence and is liable, upon conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a term not exceeding two years, or to both.

13.   Duties of Controlling Officer and chief executive officer

   (1) A Controlling Officer or a chief executive officer, as the case may be, shall be responsible and accountable for ensuring that all the procurement of the procuring entity is conducted in accordance with this Act.

   (2) Without prejudice to the generality of sub-section (1), the functions of a Controlling Officer and a chief executive officer are to—

      (a)   appoint the members of a Procurement Committee;

      (b)   act as chairperson of the Procurement Committee;

      (c)   certify the availability of funds, prior to the commencement of any procurement activity or designate an officer or officers to whom this function shall be delegated;

      (d)   authorise contract awards which fall within their level of authority;

      (e)   authorise contract documents; and

      (f)   submit such reports as are required by the Authority for purposes of this Act.

14.   Establishment of Procurement Committees

There shall be established in every procuring entity a Procurement Committee.

15.   Powers and functions of Procurement Committee

   (1) A Procurement Committee shall ensure that all procurement of the procuring entity is conducted in accordance with the provisions of this Act.

   (2) A Procurement Committee shall be the highest approvals authority for the procuring entity, and shall be responsible for providing prior authorisation of the procurement process in accordance with the procedure specified in section 22.

   (3) Subject to paragraph 7 of the Second Schedule, a Procurement Committee shall have an unlimited level of authority.

16.   Composition of Procurement Committees

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