PUBLIC PROCUREMENT ACT

INDEX TO SUBSIDIARY LEGISLATION

Public Procurement Act (comencement) order,2008

Public Procurement Regulation, 2011

PUBLIC PROCUREMENT ACT (COMMENCEMENT) ORDER, 2008

[Section 1]

Arrangement of Paragraphs

   Paragraph

   1.   Title

   2.   Commencement of Act No. 12 of 2008

Act 12 of 2008,

SI 108 of 2008.

 

1.   Title

This Order may be cited as the Public Procurement Act (Commencement) Order, 2008.

 

2.   Commencement of Act No. 12 of 2008

The Public Procurement Act, 2008, shall come into operation on the date of publication of this Order.

PUBLIC PROCUREMENT REGULATION, 2011

[Section 82]

[Re-denominate the currency as stipulated under S 4 of Re-denomination Act, 8 of 2012, read with Bank of Zambia Act, 43 of 1996.]

Arrangement of Regulations

PART I
PRELIMINARY

   Regulation

   1.   Title

   2.   Interpretation

   3.   Fundamental principles

   4.   Exercise of information management and dissemination functions

   5.   Circulars on reports

   6.   Reports by procuring entities

PART II
PROCURING ENTITIES

   7.   Levels of authority

   8.   Thresholds

   9.   Use of standard solicitation documents

   10.   Decision-making process for approvals authority

PART III
METHODS OF PROCUREMENT

   11.   Procurement methods

   12.   Open bidding

   13.   Open selection

   14.   Limited bidding

   15.   Limited selection

   16.   Simplified bidding

   17.   Direct bidding

PART IV
GENERAL RULES OF PUBLIC PROCUREMENT

   18.   Records of procurement process and contract management

   19.   Communication

   20.   Publication and distribution of notices

   21.   Currency for procurement

   22.   Consortium

   23.   Packaging tenders

   24.   Cancellation of procurement proceedings

   25.   Unsuccessful procurement proceedings

PART V
PROCUREMENT PLANNING

   26.   Annual procurement planning and publication

   27.   Contents of annual procurement plan

   28.   Aggregation of requirements

   29.   Division lots

   30.   Requisition and authorization

   31.   Confirmation of funds

   32.   Statement of requirements for goods

   33.   Use of brand names

   34.   Statement of requirements for works

   35.   Statement of requirements for services

   36.   Individual procurement plans

   37.   Choice of procurement method

   38.   Potential source

   39.   Emergency procurement

   40.   Selection of appropriate type of contract

   41.   Selection of bid submission methods

PART VI
BIDDING PROCESS FOR OPEN AND LIMITED BIDDING

   42.   Use of open and limited bidding procedures

   43.   Use of one-or-two stage bidding

   44.   Use of prequalification

   45.   Prequalification notices

   46.   Prequalification documents

   47.   Evaluation of applicants

   48.   Prequalification for group of contracts

   49.   Inviting bids

   50.   Bid notices

   51.   Shortlists

   52.   Contents of solicitation documents

   53.   Minimum bidding periods

   54.   Issue and sale of solicitation documents

   55.   Bid security and bid securing declaration

   56.   Clarification and amendment of solicitation documents

   57.   Extension of bidding period

   58.   Withdrawal, substitution or modification of bids

   59.   Alternative bids

   60.   Prebid conferences and site visits

   61.   Receipts of bids

   62.   Bid closing

   63.   Public opening of bids

   64.   Evaluation committee and functions

   65.   Details of evaluation methodology and criteria

   66.   Assessing responsiveness of bids

   67.   Correction of nonconformities, errors and omissions

   68.   Clarification of bids

   69.   Preliminary examination

   70.   Technical evaluation

   71.   Financial evaluation and comparison

   72.   Application of discounts

   73.   Postqualification

   74.   Evaluation report and recommendations

   75.   Scope of negotiations

   76.   Procedure for negotiations

PART VII
BIDDING PROCESS FOR OPEN AND LIMITED SELECTION FOR CONSULTING SERVICES

   77.   Use of open and limited selection procedures

   78.   Selection of bidders notices

   79.   Notices inviting expression of interest

   80.   Evaluation of expression of interest and development of shortlists

   81.   Shortlists under limited selection

   82.   Contents of solicitation documents

   83.   Choices of selection method

   84.   Submission of proposals

   85.   Evaluation criteria

   86.   Issue of solicitation document

   87.   Clarification and amendment of solicitation document

   88.   Extension of bidding period

   89.   Receipt of proposals

   90.   Deadline for submission of proposals

   91.   Opening of technical proposals

   92.   Evaluation committee and Responsibilities

   93.   Preliminary examination

   94.   Scoring of proposals for technical evaluation

   95.   Technical evaluation for Quality and Cost Based Selection, Fixed Budget Selection and Least Cost Selection

   96.   Technical evaluation for Quality Based Selection

   97.   Notification of results of technical evaluation

   98.   Financial opening

   99.   Financial evaluation for Quality and Cost Based Selection

   100.   Financial evaluation for Quality Based Selection

   101.   Financial evaluation for Fixed Budget Selection

   102.   Financial evaluation for Least Cost Selection

   103.   Scope of negotiations

   104.   Procedure for negotiations

   105.   Evaluation for selection based on consultant’s qualifications

PART VIII
BIDDING PROCESS FOR SIMPLIFIED BIDDING

   106.   Use of simplified bidding procedures

   107.   Contents of request for quotations document

   108.   Invitation of quotations and development of shortlist

   109.   Submission and receipt of quotations

   110.   Evaluation of quotations

PART IX
BIDDING PROCESS FOR DIRECT BIDDING

   111.   Use of direct bidding procedures

   112.   Procedure for low value procurement

   113.   Procedure for procurement from a sole source

   114.   Evaluation of sole bid

   115.   Procedure for negotiations

   116.   Procedures for emergency procurement

   117.   Evaluation of bid

   118.   Procedure for negotiations

   119.   Approval arrangement for emergency procurement

PART X
CONTRACT AWARD

   120.   Contract award decisions

   121.   Notice of best evaluated bidder

   122.   Commitment of funds

   123.   Contract award under open or limited bidding or selection

   124.   Contract preparation and signature under open or limited bidding or selection

   125.   Contract award under simplified bidding

   126.   Contract award under direct bidding

   127.   Performance securities

   128.   Rejection of bids and debriefing unsuccessful bidders

   129.   Public notice of contract awards

   130.   Types of contract and pricing approaches

   131.   Lump sum contracts

   132.   Time based or measured works contracts

   133.   Rate contracts

   134.   Running contracts

   135.   Percentage based contracts

   136.   Cost reimbursable and target price contracts

   137.   Contents of contract

   138.   Price adjustment

   139.   Payment terms

   140.   Advance payments

   141.   Progress payments

   142.   Retained payments

   143.   Payment documents

   144.   Payment security

PART XI
CONTRACTS MANAGEMENT

   145.   Selection of contract manger

   146.   Contract management responsibilities

   147.   Inspection of goods, works and services

   148.   Acceptance of goods, works and services

   149.   Contract amendments

   150.   Contract variations

   151.   Contract termination

PART XII
DEVIATIONS AND ACCREDITION

   152.   Procedure for applying for deviation

   153.   Monitoring and profile analysis of deviations

   154.   Procedure for accreditation of alternative procurement system

PART XIII
BIDDERS AND SUPPLIERS

   155.   Eligibility

   156.   Verification of bidders qualifications

   157.   Qualification criteria

   158.   Requirements for subcontractors and joint venture partners

   159.   Preference schemes

   160.   Reservation schemes

   161.   Supplier databases of lists

   162.   Suspension or bar of bidder or supplier

   163.   Investigation of suspension or bar by Authority

   164.   Disclosure of information and special measures for confidentiality during Consideration

   165.   Dismissal of recommendation to suspend

   166.   Determination of period for suspension or decision to bar

   167.   Contents of communication to suspend

   168.   Copy of decisions of Authority

PART XIV
PROCEDURE FOR INVESTIGATION AND REVIEW OR APPEAL

   169.   Investigations for monitoring purposes

   170.   Applications for review or appeal

   171.   Contents of applications for review or appeal

   172.   Fee for review or appeal

   173.   Action by controlling officer or chief executive officer

   174.   Action and decisions of Authority

   175.   Time and place of hearing

   176.   Appointment of review or appeals panel

   177.   Hearing of application

   178.   Procedure of hearing

   179.   Investigation of complaints and applications for review or appeal

   180.   Decisions of review or Appeals panel

   181.   Remedies

PART XV
GENERAL PROVISIONS

   182.   Exercise of policy functions

   183.   Exercise of regulatory functions

   184.   Exercise of monitoring function and appeal

<IN:LF:1.125,FI:-1.125>   185.    Exercise of capacity building and professionalisation functions

      FIRST SCHEDULE

      SECOND SCHEDULE

      THIRD SCHEDULE

      FOURTH SCHEDULE

Act 12 of 2008,

SI 63 of 2011.

PART I
PRELIMINARY

 

1.   Title

These Regulations may be cited as the Public Procurement Regulation, 2011.

 

2.   Interpretation

   (1) In these Regulations, unless the context otherwise requires–

“applicant” means a person or group submitting an application to prequalify, or for an expression of interest;

“Authority” has the meaning assigned to in the Act;

“evaluation committee” means a group of persons selected to evaluate tenders, proposals or quotations, in accordance with the evaluation criteria stated in the solicitation document, and the preparation of evaluation reports for submission to an approvals authority; and

“fundamental principles” means the principles specified under regulation 3.

 

3.   Fundamental principles

Public procurement shall be governed by the following fundamental principles:

      (a)   Transparency;

      (b)   Competition;

      (c)   Economy;

      (d)   Efficiency;

      (e)   Fairness;

      (f)   Value for money; and

      (g)   Accountability.

 

4.   Exercise of information management and dissemination functions

The Authority shall, with respect to developing and implementing systems for the publication and management of public procurement information–

      (a)   take into account the most efficient and economic    use of media, including electronic media;

      (b)   ensure that systems are accessible to intended user; and

      (c)   consider the ease of maintaining and updating systems.

 

5.   Circulars on reports

      (1) The Authority shall issue public procurement circulars relating to reports required by it, which circulars may, amongst other things, specify the–

      (a)   types of data and information required;

      (b)   format for report; and

      (c)   frequency and submission deadlines for reports.

   (2) The Authority shall ensure that reporting requirements imposed on procuring entities are not overly burdensome .

 

6.   Reports by procuring entities

A procuring entity shall submit such procurement reports as the Authoritymay require to facilitate the establishment and maintenance of data andinformation bases relating to public procurement and to assist in the monitoring of public procurement and development of public procurement policies.

PART II
PROCURING ENTITIES

 

7.   Levels of Authority

   (1) The level of authority for a procurement committee shall be determined by the authority pursuant to paragraph 7 of the second Schedule to the Act.

   (2) The level of authority of a controlling officer or chief executive officer of a procuring entity shall be as specified in the First Schedule.

   (3) The level of authority for any designated senior officer or officer of a procuring entity shall be as specified by the controlling officer or chief executive officer, in writing.

 

8.   Thresholds

   (1) The thresholds for the use for each procurement method are as set out in the Second Schedule.

   (2) The Authority shall, in reviewing and revising the thresholds referred to in sub-regulation (1), take into account all relevant factors, including the need to safeguard public funds, the need for efficiency in the procurement process and the capacity of procuring entities and approvals authorities.

 

9.   Use of Standard solicitation documents

   (1) All procuring entities shall use the standard solicitation documents issued by the Authority for a particular kind of procurement or where no such document has been issued shall seek approval to use a solicitation document developed by that procuring entity until the Authority issues the standard solicitation document.

   (2) The Authority shall ensure that standard solicitation documents are easily available to all procuring entities by posting them on its website or by delivering them to the offices of such entities.

   (3) The Authority shall notify all procuring entities of any amendments to, or change of, any standard solicitation document as soon as these are done.

   (4) Any amendment to, or change of, a solicitation document that has not been notified to a procuring entity shall not take effect until the notification has been given.

 

10.   Decision-making process for approvals authority

   (1) An approvals authority shall properly and time review and authority a procurement requirement of the procuring entity, which has been submitted to the approvals authority.

   (2) An approvals authority shall consider each submission made to it based on

The information and supporting documents contained in the submission.

   (3) An approvals authority shall make its decision regarding a procurement requirement submitted to it, in writing, stating the following:

      (a)   Whether the submission is approved or rejected;

      (b)   The reasons for the rejection, if that is the case; and

      (c)   The conditions applicable to the approved submission.

   (4) A procurement unit may resubmit any submission rejected by an approvals authority after taking into account the reasons given for the rejection.

   (5) An approvals authority may give a conditional approval to a submission, where there is a minor issue to be resolved relating to the procurement.

   (6) Any decision made by an approvals authority shall be valid for a period of–

      (a)    Six months from the date of the approval, in the case of a local contract, which may be extended for a further period of three months, without changing the terms and conditions of the original contract; or

      (b)    Six months from the date of the approval, in the case of an international contract, which may be extended for a further period of six months without Changing the terms and conditions of the original contract.

PART III
METHODS OF PROCUREMENT

 

11.   Procurement methods

   (1) A procuring entity shall use one of the following procurement methods, as specified in the Act and these Regulations, in undertaking the procuring entity’s procurement activities:

      (a)   open bidding, which may be national or international;

      (b)   open selection, which may be national or international;

      (c)   limited bidding;

      (d)   limited selection;

      (e)   simplified bidding;

      (f)   direct bidding;

      (g)   force account;

      (h)   purchases from other procuring entities; or

      (i)   community participation in procurement.

   (2) A procuring entity shall undertake public procurement under a selected method of procurement in accordance with the public procurement planning process, procurement process, contract award process and contract management process as specified under the Act and these Regulations.

   (3) A procuring entity shall not use any alternative procurement methods unless such method has been approved by the Authority prior to its use.

 

12.   Open bidding

   (1) A procuring entity shall use open bidding for all procurement of goods, works and non-consulting services, except where–

      (a)   the procurement meets of the conditions for the use of limited bidding;

      (b)   the estimated value of the procurement is less than the applicable thresholds for simplified bidding; or

      (c)   the procurement meets the conditions for the use of direct bidding.

   (2) A procuring entity shall select open national bidding or open international bidding in accordance with section 26 of the Act.

 

13.   Open selection

   (1) A procuring entity shall use open selection for the procurement of all consulting services, except where–

      (a)   the procurement meets the conditions for the use of limited selection;

      (b)   the estimated value of the consulting services is less than the threshold for simplified bidding; or

      (c)   the procurement meets the conditions for the use of direct bidding.

   (2) A procuring entity shall select open national selection or open international selection in accordance with section 28 of the Act.

 

14.   Limited bidding

A procuring entity may use limited bidding for goods, works or nonconsulting services, where–

      (a)   the goods, works or services are only available from a limited number of suppliers;

      (b)   there is urgent need for the goods, works or services, and engaging in open bidding would be impractical;

      (c)   the requirement is of a specialised nature or relates to public safety or public security which makes open bidding inappropriate; or

      (d)   open bidding has failed to secure an award of contract.

 

15.   Limited selection

A procuring entity may use limited selection for consulting service where–

      (a)   the consulting services are only available from a limited number of suppliers;

      (b)   there is an urgent need for the consulting services and engaging in open selection would be impractical;

      (c)   the requirement is of a specialised nature or relates to public safety or public security which makes open bidding inappropriate; or

      (d)   open bidding has failed to secure an award of contract.

 

16.   Simplified bidding

   (1) A procuring entity may use simplified bidding where the estimated value of the goods, works or services does not exceed the threshold specified in the Second Schedule.

      (2) A procuring entity may use simplified bidding for–

       (a)     readily available off-the-shelf goods of low value;

       (b)    small value goods whose specifications are standard; or

       (c)    low value works or services.

 

17.   Direct bidding

A procuring entity may use direct bidding where the estimated value of the goods, works or services does not exceed the threshold specified in the Second Schedule.

PART IV
GENERAL RULES OF PUBLIC PROCUREMENT

 

18.   Records of procurement process and contract management

   (1) A procuring entity shall keep the following records relating to the procurement proceedings which records shall be open inspection by the Authority:

      (a)   records arising from the procurement process;

      (b)   records relating to contracts management;

      (c)   all records of the procurement Committee;

      (d)   any record of the controlling officer or the chief executive officer which relate to the procurement process, contracts management and the administrative review process; and

      (e)   any other record of a procurement nature arising under matters related to the Act or these Regulation

   (2) All procurement records maintained by a procuring entity shall contain, as appropriate, the following documents:

      (a)   the request to initiate procurement proceedings;

      (b)   a copy of any published notices;

      (c)   any shortlist or list of prequalified bidders;

      (d)   a copy of the prequalification and solicitation documents and any amendments or clarifications of the documents;

      e)   the records of bids received;

      (f)   the records of bid openings;

      (g)   copies of all bids evaluated and any clarifications requested and responses received;

      (h)   the evaluation report;

      (i)   minutes of any meetings related to the procurement, including prepare bid and negotiation meetings;

      (j)   the notice of best evaluated bidder;

      (k)   the letter of bid acceptance;

      (l)   the contract document;

      (m)   any contract amendments; and

      (n)   all submissions to, and all decisions of, the approvals Authority relating to the procurement, including–

      (i)   the choice of procurement method;

      (ii)   authorisation of solicitation documents;

      (iii)   authorisation of evaluation reports; and

      (iv)   Authorisation of contract documents, contract award and contract amendments; and

      (o)   any decision to suspend or cancel procurement proceedings.

   (3) All contract management records maintained shall contain the following documents:

      (a)    the signed contract document, including any signed contract amendment;

      (b)   any variations issued under the contract;

      (c)   all post contract documentation relating to the fulfilment of contract obligations, in particular copies of bank guarantees or advance payment guarantees;

      (d)    minutes of any meetings relating to contracts management, including contract progress or review meetings;

      (e)   all documentation evidencing deliveries of goods or completion certificates in relation to contracts for works or services;

      (f)   copies of all invoices for goods, works and services, including work papers verifying the accuracy of payments claimed and details of the aactual payment authorised by a contracts manger;

      (g)   copies of cumulative payment worksheets evidencing management of all payments made;

      (h)   copies of any claims made by a contract manager on behalf of the procuring entity in respect of any warranty, non-warranty, short supply, damage and other claims, upon the supplier or upon the procuring entity;

   (i)      all correspondence between the procuring entity and supplier; and

      (j)   all submissions to, and all decisions of, the approvals authority relating to contracts management, including the authorisation of any contract amendment.

   (4) Any record maintained in accordance with the Act and these Regulations may accessible to any person ,authorised by the Authority, on payment of a fee to be determined by the Authority.

 

19.   Communication

   (1) The English language shall be used as a medium of communication in all public procurement matters.

   (2) The medium of communication shall be specified in the solicitation documents.

   (3) A procuring entity shall record in the minutes of the meeting all discussions at a meeting between a procuring entity and a bidder or supplier, and confirm all agreements in writing.

   (4) Any communication between a procuring entity and a bidder or supplier shall be made in writing .

 

20.   Publication and distribution of notices

   (1) A procuring entity shall publish any notice inviting potential bidders to participate in procurement proceedings and any contract award–

      (a)   in the Gazette;

      (b)   in a daily newspaper of general circulation in Zambia, to reach a sufficient number of potential bidders and ensure effective competition;

      (c)   in any media of wide regional or international circulation, where the method of procurement is open international bidding or open international selection;

      (d)   to the extent feasible, on the internet, including any regional website or website established by the Authority; and

      (e)   in a prominent place on the notice board at the procuring entity’s office.

   (2) A procuring entity may use information communication technology in the procurement process especially in matters relating to the following:

      (a) publication of general procurement notices;

      (b) advertisement of procurement opportunities;

      (c) publication of a summary of evaluation results;

      (d) requesting for information on the bidding process; or

      (e) dissemination of laws related to public procurement.

   (3) Where open international bidding or open international selection is used, the notice shall also be published in media of wide regional or on widely read internet sites.

   (4) Where a procuring entity believes that it is necessary to ensure wide competition, it may, after the date of publication of the notice referred to in sub-regulation (1), send invitation notices directly to–

       (a)    potential bidders, who may include registered bidders, past suppliers or any other identified potential sources;

      (b)    professional or industry associations; or

       (c)    any Zambia high commission or embassy in countries which are likely to participate, or foreign embassies of those countries in Zambia where open international bidding or open international selection is used.

   (5) A procuring entity shall keep a record of any bidder or organisation to whom an invitation notice is sent directly, which shall from part of the procurement record.

 

21.   Currency for procurement

   (1) The kwacha or any foreign currency specified in the solicitation document shall be used in any bidding under the Act and these Regulations.

   (2) Where a bidder provides an offer in foreign currency, the Bank of Zambia established under the Bank of Zambia Act, shall be the source of the exchange rate to be used.

   (3)   The solicitation documents shall specify the effective date for the conversion of the Foreign exchange to the kwacha, where appropriate.

 

22.   Consortium

   (1) Bidders may from a consortium to increase their capacity and competitiveness for solicitation purposes.

   (2) Where bidders from a consortium for purposes of bidding one of the bidders shall be considered as the lead bidder and serve as their representative in all activities related to the bid.

   (3) A bid submitted by a consortium shall be single document and bear the name of the consortium or the lead bidder.

   (4) A bidder shall not participate in two different consortiums in the same bidding process.

   (5) A person shall not submit a bid that person’s own name and as part of a consortium for the same bidding process.

   (6) Persons participating in a consortium shall be individually and collectively liable towards the procuring entity.

 

23.   Packaging tenders

   (1) A procuring entity may package tenders into different lots based on certain economic interest such as the promotion of small sized companies or the attraction of a large number of bidders.

   (2) Where a procuring entity decides to package a tender, it shall ensure that the solicitation documents specify the nature of each lot and modalities for awarding the tender.

   (3) Notwithstanding sub-regulation (1), a procuring entity shall not divide tenders in a manner aimed at avoiding the procurement procedures provided for under the Act and these Regulations.

 

24.   Cancellation of procurement proceedings

   (1) A procuring entity shall avoid the cancellation of procurement proceedings whenever possible, but a cancellation may be approved by the approvals Authority where–

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

      (b)   funding is not sufficient for the procurement;

      (c)   there is a significant change in the required technical details, bidding conditions, conditions of contract or other details, such that the recommencement of procurement proceedings is necessary;

      (d)   no responsive bids are received;

      (e)   there is evidence of collusion among bidders;

      (f)   it is otherwise in the public interest; or

      (g)   there is evidence of corrupt practices by a public officer or any other person involved in the procurement.

   (2) A procurement Unit shall, before cancelling any procurement proceedings, consult with the user department which issued the requisition and obtain the prior authorisation of the approvals authority.

   (3) A procurement Unit shall prepare a written request, to the approvals authority, for authorisation to cancel a procurement proceeding, which shall clearly state–

      (a)   detailed reasons for recommending the cancellation;

      (b)   the status of the procurement proceedings, including in particular, whether bids have already been opened under open or limited bidding or Selection; and

      (c)   whether new procurement proceedings are recommended and, if so, the modifications recommended.

   (4) A procurement Unit shall, where procurement proceedings re cancelled prior to bid opening, return the bids to all the bidders, unopened.

 

25.   Unsuccessful procurement proceedings

   (1) A procurement Unit shall, where no responsive bids are received or any procurementproceeding is otherwise unsuccessful, investigate the failed procurement proceeding and prepare and submit a report to the approvals authority, who shall report the matter to the Authority.

   (2) An investigation undertaken in accordance with subregulation (1) shall consider all relevant issues, including the following:

      (a)   whether the bidding period was sufficient, considering the factors required to be taken into account in determining the minimum bidding periods as provided in these Regulations;

      (b)   whether the requirement of the solicitation document and the terms and conditions of the proposed contract were reasonable and not so as to deter completion;

      (c)   whether any invitation notice was published in an appropriate publication and on the required date;

      (d)   whether any shortlist included sufficient bidders and whether the bidders included provided the goods, works or services required;

      (e)   whether there was any delay in issuing the solicitation documents;

      (f)   whether any amendments or clarifications to the solicitation documents allowed sufficient time for bidders to take them into account in preparing their bids;

      (g)   whether there were other extraneous events or circumstances, which may have affected the ability of bidders to respond;

      (h)   whether the evaluation process was conducted in accordance with these Regulations and the solicitation document, and whether staff responsible for the evaluation had adequate skills and resources;

      (i)   whether there is any suspicion of collusion between potential bidders; and

      (j)   whether the original choice of procurement method was appropriate.

   (3) A report prepared under subregulation (1) shall include the reason why the procurement was unsuccessful and recommendations on how any new procurement proceedings should be managed to avoid such failings.

   (4) An approvals authority shall on receipt of the report submitted under sub-regulation (1), make appropriate recommendations to the procuring entity, which may include–

      (a)   the use of an alternative method of procurement;

      (b)   amendments to the solicitation document, including bidding , the type of contract or the terms and conditions of the proposed contract;

      (c)   alternative publication of any invitation notice or a revised shortlist; or

      (d)   the introduction of regional or international competition.

PART V
PROCUREMENT PLANNING

 

26.   Annual procurement Planning and Publication

   (1) A Procurement unit shall, in consultation with a user department, prepare a procurement plan for the procuring entity, for each financial year, containing the information required under regulation 27.

   (2) A procuring entity shall integrate its annual procurement planning with the budget processes and shall base the plan on the indicative or approved budget of the procuring entity, as appropriate.

   (3) A procuring entity shall revise or update its procurement plan, as appropriate, after the approval of the budget for that financial year or during the course of financial year.

   (4) A procuring entity shall publish, in at least one daily newspaper of general circulation in Zambia or post on the procuring entity’s website and on the procuring entity’s notice board, certain information relating to the procurement plan, such as the following:

      (a)   source of the funding; and

      (b)   expected publication and execution dates.

 

27.   Contents of Annual procurement plan

An annual procurement plan for each procuring entity shall include–

      (a)   A detailed breakdown of the goods, works and services required, the procuring agency’s priorities and on indication as to whether it will be necessary to carry out a prior study for tenders of works;

      (b)   A schedules of the delivery, implementation or completion dates for all goods, works and services required;

      (c)   An indication of which items can be aggregated for procurement as a single package or for procurement through any applicable arrangements for common use items;

      (d)   An estimate of the value of each package of goods, works and services required and details of the budget available and sources of funding;

      (e)   An indication of the rules applicable to the procurement, where any procurement is not subject to these Regulations;

      (f)   An indication of the anticipated procurement method for each procurement requirement, including any need for prequalification, and the anticipated time for the complete procurement cycle, taking into account the applicable approval requirements;

      (g)   An indication of whether goods, works or services will be procured by the Procurement Unit any special agency designated to procure common use items or any other body;

      (h)   An indication of the resources available for managing the procurement workload;

      (i)   An indication whether there will be local or regional preferences for certain types of tender;

      (j)   A specification of whether there is a requirement for noobjection for an award of contract;

      (k)   A specification of planning schedules under which different processes for tendering shall be undertaken;

      (l)   A specification of schedules for the execution of contracts; and

      (m)   The details of any committed or planned procurement expenditure under existing multiyear contracts.

 

28.   Aggregation of requirements

   (1) A procuring entity shall aggregate procurement requirements, where appropriate, in order to achieve economies of scale.

   (2) A Procurement Unitshall, in deciding where aggregation is appropriate, consider all relevant factors, including–

      (a)   which items are of a similar nature and likely to attract the same bidders;

      (b)   which items shall be ready for bidding at the same time and whendelivery, implementation or completion is required;

      (c)   the optimum size and type of contract to attract the greatest and most responsive competition, taking into account the market structure for the items required;

      (d)   the need to apply any applicable measures to promote the participation of national suppliers or other target groups;

      (e)   which items will be subject to the same bidding requirements and conditions of contract; and

      (f)   the potential to realise saving in time, transaction costs or facilitate contracts management by the procuring entity.

 

29.   Division into lots

   (1) Notwithstanding the prohibition on disaggregation of procurement requirements, a procuring entity may divide a procurement requirement, which could be procured as a single contract, into a package, consisting of several lost which are to be tendered together, where it is anticipated that the award of several separate contracts may result in the best overall value for the procuring entity.

   (2) A procurement entity may divide a requirement into a package of separate lost where it is likely to increase the number of responsive bids by enabling the participation of–

      (a)   bidders who are able to bid for some, but not all, types of item; or

      (b)   small suppliers who would not be qualified to bid for the complete package as a single contract.

   (3) A procuring entity shall not divide requirement into lots–

      (a)    for the sole purpose of avoiding thresholds or levels of authority;

      (b)    where the award of several separate contracts would create problems of compatibility or interchangeability between items purchased as separate lots;

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

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

   (4) Where a procuring entity divides a requirement into lots, which may result in separate contracts, the selection of the procurement method shall be determined by the estimated total value of all the lots.

   (5) Where a procuring entity divides a requirement which could be procured as a single contract into lost, the procuring entity shall–

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

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

 

30.   Requisition and authorisation

   (1) A user department shall document all procurement requirements in a procurement requisition in the format set out in the Third Schedule, which shall include–

      (a)   a statement of requirements, in accordance with these Regulations, as appropriate;

      (b)   the estimated value of the goods, works or services; and

      (c)   details of the funds budgeted for the requirement, including any funds from future budgets for multiyear contracts.

   (2) A user department shall–

      (a) In preparing the statement of requirements, ensure that it seeks technical advice, where required; and

      (b) In estimating the value of the goods, works or services, ensure that the estimate is realistic and based on up-to-date information on economic and market conditions.

      (3) A requisition shall be approved by the controlling officer or chief executive officer or by an officer or officers designated by the controlling officer or chief executive officer to perform this function prior to the initiation of procurement proceedings.

      (4) Any approval of a requisition shall include confirmation of the–

      (a)    Need for the items listed and authority to proceed with the procurement; and

      (b)    availability of funds for the procurement.

      (6) Any requisition approved in accordance with sub-regulation (3) shall be submitted to the Procurement Unit to initiate procurement proceedings.

 

31.   Confirmation of funds

   (1) A Procurement Unit shall ensure that adequate funds are budgeted prior to initiating procurement proceedings, taking into account all costs involved in the procurement.

   (2) The costs involved may, in addition to the total contract price, include the following:

   <IN:LF:1.5,FI:-1.5>    (a)    contingencies, including any anticipated contract variations, exchange rate fluctuations or allowance for price adjustment;

      (b)    other costs relating to the successful delivery of a procurement requirement and for which the procuring entity shall be liable, such as freight, insurance customs clearance, inland delivery, import taxes or duties, inspection, installation or any costs relating to service or maintenance agreements;

      (c)    costs relating to facilities, services or resources to be provided by the procuring entity, such as office space or communication facilities for consultants or counterpart staff; or

      (d)    the cost of any other related contract, which is necessary for the successful implementation of the procurement, such as a contract for engineering supervision of a construction contract.

   (3) A Procurement Unit shall also ensure that adequate funds are available for managing the procurement proceedings, including any funds required for publication of notices.

   (4) Where a procuring entity intends to initiate procurement proceeding for a multiyear contract, which will commit the procuring entity to make payments in subsequent financial years, the procuring entity shall ensure that funds–

      (a)   For the current financial year are budgeted; and

      (b)   For future financial years are included in budgets for subsequent financial years.

 

32.   Statement of requirements For goods

   (1) Every requisition for the procurement of goods shall be accompanied by a complete, precise and unambiguous description of the goods required, in the form of a statement of requirements.

   (2) A statement of requirements shall include, where appropriate–

      (a)    a list of the goods and the quantities required, including any incidental services or works, such as delivery, installation, commissioning, maintenance, repair, user training or the provisions of after sales services;

      (b)    a delivery and completion schedule;

      (c)    specifications; and

      (d)    drawings.

   (3) The specifications referred to in paragraph (c) of sub-regulation (2) shall include, where appropriate–

      (a)   The purpose and objectives of the goods;

      (b)   A full description of the requirements;

      (c)   A generic specification to an appropriate level of detail;

      (d)   A functional description of goods, including any environmental or safety features;

      (e)   The performance parameters, including outputs, time scales and any indicators or criteria by which satisfactory performance can be determined;

      (f)   The process and materials descriptions;

      (g)   The dimensions symbols, terminology language, packaging, marking and labelling requirements;

      (h)   The inspection and testing requirements; and

      (i)   Any Zambian or other applicable standards.

 

33.   Use of brand names

      (1) A statement of requirements for goods shall not include type, specific origin, producer, manufacturer catalogue or numbered item, unless there is no other sufficiently precise or intelligible way of describing the requirement, in which case the words “or equivalent” shall be include and the description shall serve only as a benchmark during the evaluation process.

   (2) Notwithstanding subregulation (1), where a particular trademark, brand name, patent, design, type, specific origin, producer, manufacturer, catalogue or numbered item is required for reasons of technical compatibility, servicing, maintenance or preservation of warranty, such description may be used, subject to written justification.

 

34.   Statement of requirements for work

   (1) Every requisition for the procurement of works shall be accompanied by a complete, precise and unambiguous description of the works required, in the form of a statement of requirements.

   (2) A statement of requirements shall include, where appropriate–

      (a) a description of the scope of the works, which may include design, construction or installation of equipment;

      (b) the purpose and objectives of the works;

      (c) the duration or completion schedule for the works;

      (d) details of the supervision requirements, working relationships and other administrative arrangements;

      (e) drawings or design requirements;

      (f) specifications and standards;

      (g) bill of quantities or its equivalent; and

      (h) inspection and testing requirements.

 

35.   Statement of requirements For services

   (1) Every requisition for the procurement of services shall be accompanied by a complete, precise and unambiguous description of the services required in the form of a statement of requirements.

   (2) A statement of requirements shall consist of terms of reference, which shall include, where appropriate–

      (a)   A background narrative to the required services;

      (b)   The objectives of the services and targets to be achieved;

      (c)   A list of specific tasks or duties;

       (d)   Deliverables or outputs for the assignment;

      (e)   The role, qualifications or experience required for any key staff;

      (f)   Management and reporting lines for the supplier, including administrative arrangements and reporting requirements;

      (g)   Any facilities, services or resources to be provided by the procuring entity;

      (h)   Inspection or quality testing requirements or indicators of successful performance; and

      (i)   The duration or completion schedule.

 

36.   Individual Procurement Plans

   (1) A Procurement unit shall, following receipt of an approved requisition, prepare a procurement plan for each individual procurement requirement.

   (2) An individual procurement plan shall include–

      (a)    a description of the requirement, including the schedule required for delivery, implantation or completion of the goods, works or service and any division into lots;

      (b)    the estimated value of the requirement and, where applicable, individual lots;

      (c)    the proposed procurement method, and justification for the use of any method other than open bidding or open selection;

      (d)    an indication of whether pre or postqualification will be required, or whether the procurement requirement will make use of nay pre-qualification for a group of contracts; -

      (e)    an estimate of the time required for each stage in the procurement cycle, taking into account publication requirements and the applicable approval requirements;

      (f)    the proposed type of contract in accordance with these Regulations;

      (g)    the rules applicable to the procurement, where any procurement is subject to alternative rules in accordance with the Act;

      (h)    an indication of the resources required and available for management of the procurement process and contracts management; and

      (i)    any other relevant information.

   (3) Notwithstanding subregulation (1), where the estimated value of the procurement requirement is permitted for request for sealed quotations, no written procurement plan shall be required.

 

37.   Choice of procurement method

   (1) A procuring entity shall select the most appropriate method of procurement for each requirement, as part of the procurement planning process.

   (2) The choice of procurement method shall take into account–

      (a)    the estimated value of the procurement in accordance with the thresholds for that kind of procurement as specified in the Second Schedule;

      (b)    the potential sources for the procurement, in accordance with these Regulations;

      (c)    the nature of the goods, works or services required; and

      (d)    the circumstances surrounding the procurement, such as the existence of an emergency need.

   (3) A procuring entity shall clearly state in the procurement record, the reasons for the selection of a procurement method other than open bidding or open selection.

   (4) A procuring entity shall obtain the prior authorization of the approvals authority, for the use of–

      (a)   Limited bidding or limited selection; or

      (b)   Direct bidding, except where the method is used on grounds of low value, in accordance with these Regulations.

 

38.   Potential sources

   (1) A Procurement Unit shall, in considering the potential sources for any procurement requirement, consider all relevant factors, including–

      (a)   The competitiveness of the national, regional or international market for the goods, works or services to ensure value for money is achieved with public funds;

      (b)   The likely interest of national, regional or international bidders, given the size and nature of the requirement;

      (c)   Whether items should be purchased from the manufacturer or from a distributor or agent;

      (d)   Any restrictions relating to existing copyright, intellectual property rights, patent or proprietary rights;

      (e)   Whether there are functionally equivalent goods, works or services which would meet the needs of the procuring entity;

      (f)   Any applicable Government regulations that restrict sources;

      (g)   The need for compatibility or interchangeability with existing goods, works or services;

      (h)   The requirements for servicing and maintenance of items purchased and any restrictions related to conditions of warranty;

      (i)   Any impact on conditions relating to warranty or a supplier’s liability, if alternative suppliers are used for additional or continued work;

      (j)   Any potential benefits such as the use of experience acquired or savings in mobilisation costs; and

      (k)   Any applicable regional or international agreements or obligations.

   (2) Any recommendation to use a limited number of suppliers or a single source as the criterion for determining the choice of procurement method shall include–

      (a)   a comprehensive analysis of the market for the required goods, works or services;

      (b)   full details of the relevant factors in subregulation (1);

      (c)    a clear statement that no other sources could be used to open the requirement up to a more competitive procurement method; and

      (d)   A justification for any part of the statement of requirements that restrict the number of potential source.

 

39.   Emergency procurement

   (1) An emergency situation shall include circumstances which are urgent, unforeseeable and not caused by the dilatory conduct of the procuring entity where–

      (a)   The country is threatened by or confronted with a disaster, catastrophe or war;

      (b)    Life, or the quality of life or environment may be seriously compromised;

      (c)   The conditions or quality of goods, equipment, buildings or publicly owned capital goods may seriously deteriorate unless action is urgently and necessarily taken to maintain them in their actual value or usefulness; or

      (d)   An investment project is seriously delayed for want minor items.

   (2) The general maintenance of equipment shall not be regarded as an emergency unless the conditions specified in subregulation (1) exist.

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