PUBLIC PROCUREMENT ACT: INDEX TO SUBSIDIARY LEGISLATION
Public Procurement (Supplier Registration and Renewal Fees) Regulations
Public Procurement Regulations
PUBLIC PROCUREMENT (SUPPLIER REGISTRATION AND RENEWAL FEES) REGULATIONS
[Section 82]
Arrangement of Regulations
Regulation
1. Title
2. Fees
SI 9 of 2021.
These Regulations may be cited as the Public Procurement (Supplier Registration and Renewal Fees) Regulations.
The fees set out in the Schedule are payable in respect of the matters specified in the Schedule.
[Regulation 2]
PRESCRIBED FEES
Item | Fee Units |
1. Application for supplier registration | 1,000 |
2. Application for renewal of supplier registration | 1,000 |
PUBLIC PROCUREMENT REGULATIONS
[Section 112]
Arrangement of Regulations
Regulation
PART I
PRELIMINARY PROVISIONS
1. Short title
2. Interpretation
3. Exercise of information management and dissemination functions
4. Circulars on reports
5. Reports by procuring entities
PART II
PRINCIPLES OF PUBLIC PROCUREMENT
6. Fundamental principles
7. Transparency
8. Economy, efficiency and value for money
9. Accountability
10. Fairness
11. Market price index
12. Price reasonableness analysis
13. Competition
14. Probity and ethics in procurement
PART III
GENERAL RULES OF PROCUREMENT
15. Form of communication
16. Record of procurement proceedings
17. Publication and distribution of notices
18. Currency for procurement
19. Consortium
20. Subcontracting
21. Procedure for domestic subcontracting
22. Procedure for nominated subcontracting
23. Management of subcontracts
24. Packaging tenders
25. Cancellation of procurement proceedings
26. Publication of procurement awards and contract execution
27. Unsuccessful procurement proceedings
PART IV
PROCURING ENTITIES
28. Levels of authority
29. Thresholds
30. Use of standard solicitation documents
31. Decision-making process for approvals authority
32. Appointment of procurement agent or procurement service provider
PART V
METHODS OF PROCUREMENT
33. Procurement methods
34. Open national bidding or open international bidding
35. Open national selection or open international selection
36. Limited bidding
37. Limited selection
38. Simplified bidding
39. Simplified selection
40. Direct bidding
41. Direct selection
42. Electronic reverse auction
43. Bidding requirements in reverse bidding auction
44. Advertising in electronic reverse auction
45. Operation of electronic reverse auction
46. Correspondence, amendments and clarifications
47. Access to electronic reverse auction process
48. Contract award under electronic reverse auction
49. Progress, monitoring and control of contract awarded under electronic reverse auction
50. Certification of goods
51. Force account
52. Community participation
53. Establishment of project management committee
54. Conditions for community participation
55. Procedure for direct community participation
56. Appointment of project supervisor
57. Services of community-based service provider
58. Use of labour intensive technology
PART VI
PROCUREMENT PLANNING
59. Annual procurement planning
60. Contents of annual procurement plan
61. Aggregation of requirements
62. Division into lots
63. Requisition and authorisation
64. Confirmation of funds
65. Statement of requirements for goods
66. Use of brand names
67. Statement of requirements for works
68. Statement of requirements for services
69. Individual procurement plans
70. Choice of procurement method
71. Potential sources
72. Emergency procurement
73. Selection of appropriate type of contract
74. Selection of bid submission methods
PART VII
BIDDING PROCESS FOR OPEN AND LIMITED BIDDING
75. Use of open and limited bidding procedures
76. Use of one or two stage bidding
77. Use of pre-qualification
78. Pre-qualification notices
79. Pre-qualification documents
80. Evaluation of applicants
81. Pre-qualification for group of contracts
82. Inviting bids
83. Bid notices
84. Shortlists for limited bidding
85. Contents of solicitation documents for open and limited bidding
86. Minimum bidding periods
87. Issue and sale of solicitation documents
88. Bid security and bid securing declaration
89. Clarification and amendment of solicitation documents
90. Extension of bidding period
91. Withdrawal, substitution or modification of bids
92. Alternative bids
93. Pre-bid conferences and site visits
94. Receipts of bids
95. Bid closing
96. Public opening of bids
97. Evaluation committee
98. Details of evaluation methodology and criteria
99. Assessing responsiveness of bids
100. Correction of non-conformities, errors and omissions
101. Clarification of bids
102. Preliminary examination
103. Technical evaluation
104. Commercial evaluation
105. Financial evaluation and comparison
106. Application of discounts
107. Post-qualification
108. Evaluation report and recommendations
109. Scope of negotiations for open and limited bidding
110. Procedure for negotiations for open and limited bidding
PART VIII
BIDDING PROCESS FOR OPEN AND LIMITED SELECTION FOR CONSULTING SERVICES
111. Use of open and limited selection procedures
112. Selection of bidders
113. Notices inviting expression of interest
114. Evaluation of expression of interest and development of shortlists
115. Shortlists for limited selection
116. Contents of solicitation document for open and limited selection for consulting services
117. Choice of selection method
118. Selection based on consultant’s qualifications
119. Submission of proposals
120. Evaluation criteria
121. Issue of solicitation document
122. Clarification and amendment of solicitation document
123. Extension of bidding period
124. Receipt of proposals
125. Deadline for submission of proposals
126. Opening of technical proposals
127. Responsibility of evaluation committee for consulting services
128. Preliminary examination
129. Scoring of proposals for technical evaluation
130. Technical evaluation for quality and cost-based selection, fixed-budget selection and least-cost selection
131. Technical evaluation for quality-based selection
132. Notification of results of technical evaluation
133. Financial opening
134. Financial evaluation for quality and cost-based selection
135. Financial evaluation for quality-based selection
136. Financial evaluation for fixed-budget selection
137. Financial evaluation for least-cost selection
138. Evaluation for selection based on individual consultant’s qualifications
139. Scope of negotiations for consultancy services
140. Procedure for negotiations for consultancy services
PART IX
BIDDING PROCESS FOR SIMPLIFIED BIDDING
141. Use of simplified bidding procedures
142. Contents of request for quotations for simplified bidding
143. Invitation of quotations and development of shortlist for simplified bidding
144. Submission and receipt of quotations
145. Evaluation of quotations for simplified bidding
PART X
BIDDING PROCESS FOR SIMPLIFIED SELECTION
146. Use of simplified selection procedures
147. Contents of request for proposals for simplified selection
148. Invitation of proposals and development of shortlist
149. Submission and receipt of proposals
150. Evaluation of proposals for simplified selection
PART XI
BIDDING PROCESS FOR DIRECT BIDDING
151. Use of direct bidding procedures
152. Procedure for low value procurement
153. Procedure for procurement from a sole source
154. Evaluation of sole bid
155. Procedure for negotiations for direct bidding
156. Procedures for emergency procurement for direct bidding
PART XII
BIDDING PROCESS FOR DIRECT SELECTION
157. Use of direct selection procedures
158. Procedure for procurement from a sole source
159. Evaluation of sole proposal
160. Procedure for negotiations for direct selection
161. Procedure for emergency procurement for direct selection
PART XIII
BIDDING PROCESS FOR ELECTRONIC PROCUREMENT
162. Interpretation
163. Objectives and usage
164. Access to e-GP system features
165. Registration of users of e-GP system
166. Preparation of invitation to bid for electronic reverse auction
167. Bid preparation
168. Uploading tender documents on e-GP System
169. Amendment of solicitation documents
170. Submission of bid on e-GP System
171. Online tender opening
172. Appointment of evaluation committee
173. Use of e-GP System by evaluation committee
174. Approval, notification of award and contract signing
175. Fees
176. Payment for use of e-GP system
PART XIV
CONTRACT AWARD
177. Contract award decisions
178. Notice of best evaluated bidder
179. Commitment of funds
180. Contract award under open or limited bidding or selection
181. Contract preparation and signature under open or limited bidding and open or limited selection
182. Contract award under simplified bidding or simplified selection
183. Contract award under direct bidding or direct selection
184. Performance securities
185. Rejection of bids and debriefing unsuccessful bidders
186. Public notice of contract award
187. Types of contract and pricing approach
188. Lump sum contract
189. Time based or measured-works contract
190. Rate contract
191. Running contract
192. Percentage based contract
193. Cost reimbursable and target price contract
194. Contents of contract
195. Price adjustment
196. Payment term
197. Advance payment
198. Progress payment
199. Retained payment
200. Payment document
201. Payment security
PART XV
FRAMEWORK AGREEMENTS
202. Framework agreement
203. Evaluation criteria for framework agreement
204. Duration of framework agreement
205. Restriction on framework agreement
206. Annual assessment of framework agreement
207. Framework agreement with a single supplier or contractor
208. Framework agreement with several suppliers or contractors
209. Types of framework agreements
210. Conditions of use of definite quantity framework agreement
211. Conditions of use of indefinite delivery framework and indefinite quantity agreement
212. Conditions of use of requirements framework agreement
PART XVI
CONTRACT MANAGEMENT
213. Selection of contract manager
214. Contract management responsibilities
215. Inspection of goods, works and services
216. Acceptance of goods, works and services
217. Contract amendment
218. Contract variation
219. Contract termination
PART XVII
DEVIATIONS AND ACCREDITATION
220. Procedure for applying for deviation
221. Monitoring and profile analysis of deviations
222. Procedure for accreditation of alternative procurement system
PART XVIII
BIDDERS AND SUPPLIERS
223. Evidence of bidders' eligibility
224. Verification of bidders’ qualifications
225. Qualification criteria
226. Requirements for subcontractors and joint venture partners
227. Preference schemes
228. Reservation schemes
229. Supplier databases of lists
230. Suspension or bar of bidder or supplier
231. Investigation of suspension or barring by the Authority
232. Appointment of committee
233. Date and place of hearing by committee
234. Procedure for hearing by committee
235. Disclosure of information and special measures for confidentiality
236. Dismissal of recommendation to suspend or bar
237. Determination of period for suspension or decision to bar
238. Decision of committee to suspend or bar supplier or bidder
239. Contents of communication to suspend
240. Copy of decisions of Authority
PART XIX
PROCEDURES FOR APPEAL
241. Appeal to Authority
242. Fee for appeal
243. Suspension of procurement proceedings by Authority on receipt of appeal
244. Appointment of appeal committee
245. Date and place of hearing by appeal committee
246. Procedure for hearing by appeal committee
247. Information to consider in appeal
248. Decision of appeal committee
249. Remedies
PART XX
GENERAL PROVISIONS
250. Exercise of policy functions
251. Exercise of regulatory functions
252. Transfer of functions of procuring entity to other body
253. Exercise of monitoring functions
254. Certificate of appointment of inspector
255. Exercise of capacity building and professionalisation functions
256. Revocation of S.I. No. 63 of 2011
SI 30 of 2022.
PART I
PRELIMINARY PROVISIONS
These Regulations may be cited as the Public Procurement Regulations.
(1) In these Regulations, unless the context otherwise requires—
"appeal committee" means a committee appointed under regulation 244 to hear and determine an appeal by a bidder or supplier who is aggrieved with a decision of a procuring entity;
"applicant" means a person or group of persons submitting an application to pre-qualify, or for an expression of interest;
"associate" has the meaning assigned to the word in the Anti-Corruption Act, 2012;
"Authority" has the meaning assigned to the word in the Act;
"Bank of Zambia" means the Bank of Zambia established under the Constitution;
"beneficial owner" has the meaning assigned to the words in the Companies Act, 2017;
"committee" means a committee appointed by the Director-General under regulation 232 to hear and determine a recommendation to bar or suspend a bidder or supplier;
"Director-General" has the meaning assigned to the words 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;
"fundamental principles" means the principles specified under regulation 6;
"relative" has the meaning assigned to the word in the Anti-Corruption Act, 2012; and
"standard goods, work or services" means goods, works or services that are acquired by a procuring entity continuously or repeatedly whose prices are published in a quarterly market price index issued by the Authority.
3. 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 users; and
(c) consider the ease of maintaining and updating systems.
(1) The Authority shall issue public procurement circulars relating to reports required by the Authority, which specify the—
(a) types of data and information required;
(b) format for reports; and
(c) frequency and submission deadlines for reports.
(2) The Authority shall ensure that reporting requirements imposed on procuring entities are not burdensome.
5. Reports by procuring entities
A procuring entity shall submit procurement reports that the Authority may require to facilitate the establishment and maintenance of data and information relating to public procurement, and to assist in the monitoring of public procurement and development of public procurement policies.
PART II
PRINCIPLES OF PUBLIC PROCUREMENT
(1) Public procurement shall be governed by the following fundamental principles—
(a) transparency;
(b) competition;
(c) economy;
(d) efficiency;
(e) effectiveness;
(f) fairness;
(g) integrity;
(h) value for money; and
(i) accountability.
(2) A public officer or approvals authority shall be guided by the following basic considerations when undertaking or approving a procurement—
(a) the need for economy and efficiency in the use of public funds in the implementation of projects, including the provision of related goods and services;
(b) the best interests of a procuring entity in giving all eligible bidders equal opportunities to compete in providing goods or executing works or providing services;
(c) the need to get value for money for goods, works or services;
(d) the importance of integrity, accountability, fairness and transparency in the procurement process;
(e) honesty and fairness; and
(f) the need to ensure that national, social, economic and environmental interests are protected.
(1) A procuring entity shall in carrying out the procurement process be transparent to bidders and members of the public.
(2) A procuring entity shall, for the purposes of ensuring transparency in the procurement process, maintain records of each procurement as provided under section 21 of the Act.
(3) Subject to section 20 of the Act, records of procurement proceedings shall be open for inspection to the members of the public as specified in these Regulations.
8. Economy, efficiency and value for money
(1) A public officer and an approvals authority shall, when undertaking or approving a procurement, choose appropriate procedures and cause the procurement process to be carried out diligently and efficiently so that the prices paid or received by the procuring entity represents the best value or net outcome that can reasonably be obtained for the funds applied.
(2) A public officer and approvals authority shall, in addition to what is specified under sub-regulation (1), ensure that the goods, works or services procured are of the required quality and are appropriate to the procuring entity’s requirements.
(3) A procuring entity shall, where goods, works or services have been procured, ensure that the goods are delivered, the services are provided or the works are completed in a timely manner as specified in the solicitation documents and procurement contracts.
(4) A procuring entity shall, when undertaking a procurement, obtain value for money by ensuring that—
(a) transparency and integrity are achieved throughout the procurement cycle;
(b) the needs of end users and other stakeholders are appropriately identified and factored in the procurement proceedings;
(c) a clear statement of the procurement needs and objectives is developed, including permitted socio-economic or environmental goals;
(d) a procurement modality proportional to the risk, value, context and strategic importance of the procurement is chosen;
(e) the technical requirements of a procurement are adequately specified, including the cost and non-cost elements that may be evaluated to achieve those requirements, such as the life cycle cost of goods or works where appropriate;
(f) the appropriate standard contract for the procurement is used;
(g) a clear evaluation criteria aligned with the needs and objectives is developed;
(h) the bidder whose bid best meets the needs and objectives is selected; and
(i) an effective contract management plan is developed to ensure that the contract is successfully implemented and the deliverables are met as aligned in the contract.
A procuring entity shall ensure that—
(a) procurement processes are conducted and managed in accordance with the provisions of the Act and these Regulations;
(b) persons involved in procurement processes are answerable for their actions and decisions in the performance of their respective roles and responsibilities under the Act and these Regulations;
(c) information, documents, records and reports in respect of a public procurement process are availed to the Authority in accordance with the Act and these Regulations;
(d) investigations, inspections and other compliance monitoring activities undertaken by the Authority are not hindered by a procuring entity; and
(e) remedial measures required by the Authority are undertaken in the exercise of its oversight function.
A procuring entity shall take the following measures to ensure the widest possible participation by bidders on equal terms in inviting tenders for goods, works or services—
(a) publication of invitations to bid, requests for expressions of interest or proposals;
(b) elimination of discriminatory practices, technical specifications or description of services which may limit participation on equal terms except as permitted under the Act;
(c) selection criteria is specified in the solicitation or pre-qualification documents and request for proposals; and
(d) the bid or proposal selected conforms to the requirements of the solicitation documents or request for proposals and meets the specified selection criteria.
(1) The Authority shall, in preparing a quarterly market price index required under section 12(3) of the Act, determine the standard goods, works and services with known market prices as a reference guide.
(2) The Authority shall publish the market price index on the e-procurement portal and the Authority’s website.
(3) A procuring entity shall procure standard goods, works and services in accordance with the price index issued by the Authority.
(4) A procuring entity shall use a market price index during the following stages—
(a) budgeting;
(b) procurement planning;
(c) evaluation; or
(d) contract execution in relation to variations or amendments which affect the price.
(5) The Authority may issue a circular for the range of prices for goods, works or services for the purposes of the market price index.
12. Price reasonableness analysis
(1) A procuring entity shall conduct a price reasonableness analysis on the best evaluated bidder and where an item to be procured is not covered in the quarterly market price index during the following stages—
(a) evaluation; or
(b) contract execution in relation to variations or amendments which affect the price.
(2) A procuring entity shall take the following into consideration when undertaking a price reasonableness analysis—
(a) comparison of prices offered by other bidders in a competitive procurement process;
(b) historical prices which involve comparison of prices offered in the past for similar contracts;
(c) similar procurements by other procuring entities;
(d) published prices by relevant Government institutions;
(e) budget and procurement plan estimates;
(f) insurance and demurrages; and
(g) inflation, profit, labour and transport costs of the item to be procured.
(3) A procuring entity shall submit a price reasonableness analysis to the approvals authority and once approval is granted, obtain approval from the Authority.
(4) A procuring entity shall maintain a record of a price reasonableness analysis.
A procuring entity shall promote competition among bidders by ensuring that—
(a) standards, technical specifications or descriptions of services do not limit the participation of potential bidders;
(b) bidders are not discriminated on the basis of nationality, race, ethnicity, religion, gender or any other criterion not related to the bidder’s eligibility or qualifications, except to the extent provided for in the Act and these Regulations; and
(c) procurement methods that encourage wider participation are used to the extent provided for in the Act and these Regulations.
14. Probity and ethics in procurement
(1) A procuring entity shall conduct procurement proceedings with complete probity and in a manner that upholds respect and trust of the procuring entity as a client or customer while maintaining a good reputation with bidders.
(2) A procuring entity shall reject a bid of a bidder who gives or agrees to give directly or indirectly to any public officer or other public authority a gratuity in any form, an offer of employment or any other thing of service or value as an inducement with respect to an act, omission or decision of, or procedure followed by, the procuring entity in connection with that bid or proposal or any other bid or proposal.
(3) A procuring entity shall not include in a solicitation document any condition or specification to favour a bidder.
(4) A person who is involved in procurement proceedings at which any matter, is the subject of consideration and in which that person or that person’s relative or associate is directly or indirectly interested in a private capacity shall, as soon as is practicable after the commencement of the procurement proceedings, disclose that interest and shall not take part in any consideration or discussion of, or vote on, any question relating to that matter.
(5) A disclosure of interest made under sub-regulation (4) shall be in Form I set out in the First Schedule and recorded in the minutes of the meeting at which it is made.
(6) Where the disclosure of interest under sub-regulation (4) relates to the restriction on an office holder under section 15 of the Act, the bidder may be disqualified from further participation in the procurement proceedings.
PART III
GENERAL RULES OF PROCUREMENT
(1) A communication between a bidder and a procuring entity shall be in the English language and as specified in section 17 of the Act.
(2) The medium of communication between a bidder and a procuring entity shall be specified in the solicitation documents.
(3) A procuring entity shall record in the minutes of the meeting the discussions at a meeting between a procuring entity and a bidder or supplier, and confirm all agreements in writing.
(4) A communication to a procuring entity shall be addressed to the controlling officer or chief executive officer of that procuring entity through the postal, physical or electronic means.
16. Record of procurement proceedings
(1) A procuring entity shall, in addition to records referred to in section 21 of the Act, keep and maintain the following records relating to the procurement proceedings which shall be open to inspection by the Authority—
(a) records arising from the procurement process;
(b) records relating to contracts management;
(c) records of the Procurement Committee;
(d) any record of the controlling officer or the chief executive officer which relates 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 Regulations.
(2) A procurement record kept and maintained by a procuring entity shall contain the following documents—
(a) the request to initiate procurement proceedings;
(b) a copy of any published notices;
(c) any shortlist or list of pre-qualified bidders;
(d) a copy of the pre-qualification 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 the bids evaluated and any clarifications requested and responses received;
(h) the evaluation report;
(i) minutes of any meetings related to the procurement, including pre-bid and negotiation and debrief meetings;
(j) the notice of best evaluated bidder;
(k) the letter of bid acceptance;
(l) the contract document;
(m) any contract amendments;
(n) a submission to, and a decision 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 the procurement proceedings.
(3) A record of the procurement process referred to under sub-regulation (1)(a) shall, in addition to the information under section 21(2) of the Act, contain the following information—
(a) the names and addresses of bidders who were pre-qualified, shortlisted or selected and invited to submit tenders including the procedure used to select the bidders;
(b) the names and addresses of bidders that submitted tenders and the name and address of the bidders with whom the procurement contract is entered into and the contract price;
(c) information relating to the qualifications, or lack thereof, of bidders that submitted bids;
(d) price, price reasonableness analysis, and a summary of the other principal terms and conditions of each tender and of the procurement contract, where these are known to the procuring entity;
(e) a summary of the evaluation and comparison of tenders, including the application of any margin of preference specified in these Regulations;
(f) where a bid is rejected, a statement to that effect and the grounds for the rejection;
(g) where procurement proceedings did not result in a procurement contract, a statement to that effect and the grounds thereof;
(h) a statement of the grounds and circumstances on which the procuring entity relied on to justify the selection of the method of procurement used in procurement proceedings;
(i) a summary of any requests for clarification of the pre-qualification, request for expression of interest or solicitation documents or request for proposals, the responses thereto as well as a summary of any modification of those documents; and
(j) a summary of all complaints lodged by bidders before the award of the contract and decisions thereof.
(4) A record relating to contract management referred to under sub-regulation (1)(b) shall contain the following documents—
(a) the signed contract document, including any signed contract amendments;
(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) the documentation evidencing deliveries of goods or completion certificates in relation to contracts for works or services;
(f) copies of the invoices for goods, works and services, including work papers verifying the accuracy of payments claimed and details of the actual payment authorised by a contracts manager;
(g) copies of cumulative payment worksheets evidencing management of the 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 on the supplier or on the procuring entity;
(i) all correspondence between the procuring entity and supplier; and
(j) a submission to, and a decision of, the approvals authority relating to contracts management, including the authorisation of any contract amendment.
(5) A procuring entity shall not disclose the information under sub-regulation (1)(d) and (e), except when ordered by the Authority or a competent court and subject to the conditions of that order, and where—
(a) the disclosure of information shall—
(i) be contrary to law;
(ii) impede law enforcement;
(iii) not be in the public interest;
(iv) prejudice legitimate commercial interests of the parties; or
(v) inhibit fair competition; or
(b) the information relates to the examination, evaluation and comparison of bids and bid prices, other than the summary referred to under sub-regulation (1)(d).
(6) A procuring entity shall submit the records referred to under this regulation to the Authority as the Authority may determine.
(7) Subject to section 20 of the Act, a record maintained in accordance with the Act and these Regulations may be open for inspection by any member of the public authorised by the Authority, on payment of a fee set out in the circulars issued by the Authority.
(8) A record referred to under this regulation shall be kept for a period of not less than 10 years from the date of completion of the contract and may be made available within a reasonable time during that period to the Auditor-General, the Authority or any other officer authorised by the controlling officer or chief executive officer.
(9) A procuring entity shall not be liable to a bidder for damages owing solely to a failure to maintain a record of the procurement or selection proceedings in accordance with these Regulations.
17. Publication and distribution of notices
(1) A procuring entity shall publish any notice inviting potential bidders to participate in a procurement proceeding and any contract award as follows—
(a) the Gazette;
(b) a daily newspaper of general circulation in the Republic;
(c) any media of wide regional or international circulation or on widely read internet sites, where the method of procurement is open international bidding or open international selection;
(d) on the e-procurement portal;
(e) to the extent feasible, on the internet, including any regional website or website established by the Authority or procuring entity; or
(f) 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 in matters relating to the—
(a) publication of the annual procurement plan;
(b) publication of general procurement notices;
(c) advertisement of procurement opportunities;
(d) publication of contract award;
(e) publication of a summary of evaluation results;
(f) request for information on the bidding process; or
(g) dissemination of laws related to public procurement.
(3) 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 under 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) a Zambian high commission or embassy in countries which are likely to participate, or foreign embassies of those countries in the Republic where open international bidding or open international selection is used.
(4) A procuring entity shall keep a record of any bidder or organisation to whom an invitation notice is sent directly, which shall form part of the procurement record.
(1) The kwacha or any foreign currency specified in a 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 shall be the source of the exchange rate to be used.
(3) A solicitation document shall specify the effective date for the conversion of the foreign currency to the kwacha, where appropriate.
(1) Bidders may form a consortium to increase their capacity and competitiveness for solicitation purposes.
(2) Where bidders form a consortium for purposes of bidding under sub-regulation (1), one of the bidders shall be considered as the lead bidder and serve as the representative in all activities related to the bid.
(3) A bid submitted by a consortium shall be a 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 in 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.
(1) A procuring entity shall require foreign bidders or suppliers to subcontract to citizen bidders and suppliers, a minimum threshold of 20 per cent of the total value of the procurement for procurements exceeding the simplified bidding and simplified selection thresholds set out in the Second Schedule.
(2) A foreign bidder or supplier shall apply the methods of subcontracting specified under section 93(3) of the Act.
(3) A solicitation document shall state the method of subcontracting that a foreign bidder or supplier shall apply.
21. Procedure for domestic subcontracting
(1) A foreign bidder or supplier shall, for purposes of domestic subcontracting under section 93(3)(a) of the Act, select a citizen bidder or supplier who—
(a) is eligible to participate in a procurement under section 89 of the Act; and
(b) meets the qualification criteria under section 90 of the Act.
(2) A foreign bidder or supplier shall include the following in the bid—
(a) details relating to the selected subcontractor;
(b) documents showing proof of the eligibility and qualifications of the subcontractor;
(c) scope of the goods, works or services and priced schedules; and
(d) a proposed subcontracting agreement.
22. Procedure for nominated subcontracting
(1) A procuring entity shall, for purposes of nominated subcontracting under section 93(3)(b) of the Act, use a competitive process to identify subcontractors who shall be nominated for award of subcontracts.
(2) A procuring entity shall prepare separate scope of works and bills of quantities for the main contractor and subcontractor and shall run parallel tenders for the procurement of the main contractor and the subcontractor.
(3) A best evaluated bidder under a tender for subcontracting shall be nominated as a subcontractor and shall sign a subcontract agreement with the main contractor.
(4) A procuring entity shall, where the subcontract bid sum does not meet the subcontracting threshold specified in the solicitation document, reallocate part of the scope of the goods, works or services for the main contract to the subcontractor in order to meet the threshold.
(5) A procuring entity shall use the unit rates in the subcontract bid for pricing the reallocated scope of the goods, works or services under sub-regulation (4) where the specifications and requirements are comparable in terms of description and units of measure.
(6) A procuring entity shall, where the reallocated scope of the goods, works or services are not comparable to the subcontractor’s scope, use the unit rates in the main contract for pricing the reallocated scope.
23. Management of subcontracts
(1) The main contractor or supplier shall be responsible for—
(a) managing, supervising and co-ordinating a subcontractor’s works;
(b) certifying the goods, works or services supplied or performed by a subcontractor; and
(c) supervising costs of the subcontractor.
(2) The main contractor shall include in a bid an amount for managing a subcontractor.
(3) The payments for certified works undertaken by the subcontractor shall be made directly by a procuring entity into the subcontractor’s bank account.
(1) A procuring entity may package tenders into different lots based on certain economic interests such as the promotion of small business enterprises or the attraction of a large number of bidders.
(2) A procuring entity that intends to package a tender shall ensure that the solicitation documents specifies the nature of each lot and modalities for awarding the tender.
(3) Despite sub-regulation (1), a procuring entity shall not divide tenders in a manner aimed at avoiding the procurement procedures provided under the Act and these Regulations.
(4) The main contractor shall be required to include in their rates an amount for managing subcontract.
25. 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 under the circumstances specified under section 69(1) of the Act.
(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 request, in writing, 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 procuring entity shall, where the approvals authority has authorised the cancellation of a tender—
(a) refund any fee paid on the solicitation document; and
(b) release any tender security obtained.
(5) A Procurement Unit shall, where procurement proceedings are cancelled prior to bid opening, return the bids to all the bidders, unopened.
26. Publication of procurement awards and contract execution
(1) A procuring entity shall, within 14 days from the date of award of a contract, publish a notice of contract award in respect of any procurement in Form II set out in the First Schedule.
(2) A controlling officer or chief executive officer shall, after completion of a contract that exceeds the threshold for simplified bidding or simplified selection set out in the Second Schedule, provide the Authority with complete information on contract implementation including the original contract period, the final contract period, original approved contract sum and the final contract amount paid to the bidder, and any deductions made by the procuring entity within the quarter in which the contract is completed.
27. Unsuccessful procurement proceedings
(1) A Procurement Unit shall, where no responsive bids are received or any procurement proceeding is otherwise unsuccessful, investigate the failed procurement proceedings and prepare and submit a report to the approvals authority, who shall report the matter to the Authority within 14 days of completing the investigations.
(2) An investigation undertaken under sub-regulation (1) shall consider all relevant issues, including whether—
(a) 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) the requirements of the solicitation document and the terms and conditions of the proposed contract were reasonable and not so as to deter competition;
(c) any invitation notice was published in an appropriate publication and on the required date;
(d) any shortlist included sufficient bidders and whether the shortlisted bidders included provide the goods, works or services required;
(e) there was any delay in supplying the solicitation documents;
(f) any amendments or clarifications to the solicitation documents allowed sufficient time for bidders to take them into account in preparing their bids;
(g) there are other extraneous events or circumstances which may have affected the ability of the bidders to respond;
(h) the evaluation process was conducted in accordance with the Act, these Regulations and the solicitation document, and whether the staff responsible for the evaluation had adequate skills and resources;
(i) there is any suspicion of collusion between potential bidders; or
(j) the original choice of procurement method was appropriate.
(3) A report prepared under sub-regulation (1) shall include the reasons why the procurement process was unsuccessful and recommendations on how any new procurement proceedings shall be managed to avoid failed procurement proceedings.
(4) The recommendations under sub-regulation (3) may include—
(a) the use of an alternative method of procurement;
(b) amendments to the solicitation document, including bidding requirements, the type of contract or the terms and conditions of the proposed contract;
(c) alternative publication of any invitation notice or revised shortlist; or
(d) the introduction of regional or international competition.
PART IV
PROCURING ENTITIES
(1) The level of authority for a Procurement Committee shall be determined by the Authority and as set out in the Third Schedule.
(2) The level of authority of a controlling officer or chief executive officer of a procuring entity shall be as set out in the Third Schedule.
(3) The level of authority of a subcommittee or subdivision of a Procurement Committee shall be specified by the Procurement Committee.
(4) The level of authority for any designated senior officer or office of a procuring entity shall be as specified by the controlling officer or chief executive officer, in writing.
(1) The thresholds for the use of each procurement method are as set out in the Second Schedule.
(2) The Authority shall, in reviewing and revising the thresholds referred to under 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.
30. Use of standard solicitation documents
(1) A procuring entity shall use the standard solicitation documents issued by the Authority for a particular kind of procurement or where no such document has been issued to seek approval from the Authority to use a solicitation document developed by that procuring entity until the Authority issues the standard solicitation document.
(2) The Authority shall ensure that a standard solicitation document is easily available to all procuring entities by posting the solicitation document on the Authority website or the e-procurement portal.
(3) The Authority shall notify all procuring entities of any amendments to, or change of, any standard solicitation document thereof.
(4) An amendment to, or change of, a solicitation document that has not been notified to procuring entities shall not take effect until the notification has been given.
31. Decision-making process for approvals authority
(1) An approvals authority shall review and authorise a procurement requirement of a procuring entity which has been submitted to the approvals authority.
(2) An approvals authority shall consider each submission made to that approvals authority based on the information and supporting documents contained in the submission.
(3) An approvals authority shall make a decision regarding a procurement requirement submitted to that approvals authority, 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) Where an approvals authority rejects a submission made to it under sub-regulation (3), the approvals authority shall not substitute the submission with its own decision.
(5) A Procurement Unit may re-submit any submission rejected by an approvals authority after taking into account the reasons given for the rejection.
(6) An approvals authority may give a conditional approval to a submission where there is a minor issue to be resolved relating to the procurement.
(7) A 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.
32. Appointment of procurement agent or procurement service provider
(1) A procuring entity may, with the authorisation of the Authority, appoint an existing procuring entity as a procurement agent or procurement service provider under the following circumstances—
(a) where a procurement is of a specialised nature;
(b) the procuring entity does not have qualified personnel as required under the Zambia Institute of Purchasing and Supply Act, 2003;
(c) the procuring entity is a newly established body; or
(d) under other circumstances as determined by a procuring entity that the Authority considers appropriate.
(2) The Authority shall authorise the appointment of a proposed procurement agent or procurement service provider under sub-regulation (1) on a written request by a procuring entity which specifies—
(a) the reasons for the appointment;
(b) the name of the proposed procurement agent or procurement service provider;
(c) the terms of reference for the appointment of a procurement agent or procurement service provider;
(d) whether the appointment shall be for a single or multiple procurements;
(e) the duration of the appointment;
(f) consent from the proposed procurement agent or procurement service provider; and
(g) any other relevant information that the Authority may determine.
(3) A procuring entity shall—
(a) meet the cost of the services offered by the procuring agent or procurement service provider;
(b) prepare the terms of reference for the procurement agent or procurement service provider;
(c) be responsible for the actions and performance of the procurement agent or procurement service provider; and
(d) only use a procuring entity authorised by the Authority.
(4) A procuring entity shall not contract out both the procurement and contract management functions to the same procurement agent or procurement service provider.
(5) The functions of the controlling officer or chief executive officer specified under section 26 of the Act shall not be contracted to a procurement agent or procurement service provider appointed under this regulation.
(6) A procuring entity shall submit a report to the Authority on the performance of the procurement agent or procurement service provider within 14 days of the expiry of the appointment.
PART V
METHODS OF PROCUREMENT
(1) A procuring entity shall use one of the procurement method specified under section 37 of the Act in undertaking procurement activities.
(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 method unless that method has been approved by the Authority prior to its use.
34. Open national bidding or open international bidding
(1) A procuring entity shall select open national bidding or open international bidding in circumstances provided under section 39 of the Act.
(2) A foreign bidder who participates in the open international bidding under section 39(5) of the Act shall include the following information in the bid—
(a) the name of the citizen bidder that the foreign bidder shall partner with if awarded the contract;
(b) the documentation on the partnership arrangements between the foreign bidder and citizen supplier or bidder; and
(c) any other documentation stated in the solicitation document.
35. Open national selection or open international selection
(1) A procuring entity shall select open national selection or open international selection in the circumstances specified under sections 40 and 41 of the Act.
(2) A foreign bidder who participates in open international selection under section 41(4) of the Act shall include the following information in the bid—
(a) the name of the citizen bidder that the foreign bidder shall partner with if awarded the contract;
(b) the documentation on the partnership arrangements between the foreign bidder and citizen bidder; and
(c) any other documentation stated in the solicitation document.
(1) A procuring entity may, in addition to the circumstances provided under section 42(2) of the Act, use limited bidding for goods, works or non-consulting services, where—
(a) the requirement is of a specialised nature or relates to public safety or public security which makes open bidding inappropriate;
(b) there is a need to achieve specific social objectives by calling for participation of local communities or target groups; or
(c) open bidding has failed to secure an award of contract.
(2) The justification for limited bidding under sub-regulation (1) shall be disclosed in the record of the procurement proceedings.
(3) Except where bidders have already been pre-qualified, a procuring entity issuing a limited tender shall seek bids from a broad list of potential bidders with a view to assuring competitive prices.
(1) A procuring entity may, in addition to the circumstances provided under section 43(2) of the Act, use limited selection for consulting services where—
(a) the requirement is of a specialised nature or relates to public safety or public security which makes open selection inappropriate;
(b) open selection has failed to secure an award of contract; or
(c) there is need to achieve specific social objectives by calling for participation of local communities or target groups.
(2) The justification for the use of limited selection under sub-regulation (1) shall be specified in the record of the procurement proceedings.
(1) A procuring entity may use simplified bidding where the estimated value of the goods, works or non-consulting services does not exceed the threshold set out in the Second Schedule.
(2) A procuring entity may use simplified bidding for—
(a) readily available off the shelf goods of low value;
(b) low value goods whose specifications are standard; or
(c) low value works or services.
A procuring entity may use simplified selection where the estimated value of the consulting services does not exceed the threshold set out in the Second Schedule.
A procuring entity may use direct bidding in the circumstances provided under section 46(2) of the Act and where the estimated value of the goods, works or non-consulting services does not exceed the threshold set out in the Second Schedule.
A procuring entity may use direct selection in the circumstances provided under section 47(2) of the Act.
42. Electronic reverse auction
(1) A procuring entity may use electronic reverse auction in the procurement of standard goods in the circumstances specified under section 48(2) of the Act.
(2) The electronic reverse auction may be applied in the procurement of goods where the—
(a) auction scope and the evaluation criteria for selection and award of a contract is clearly established and advertised;
(b) value of items to be procured is substantially high to make the procurement commercially viable;
(c) procuring entity verifies that all operational conditions are met for starting the auction, including connecting all participants to the e-GP system and ensuring that conditions required for safeguarding anonymity are in place; or
(d) auction is carefully monitored to avoid market manipulation.
(3) The electronic reverse auction method shall not be applied where a considerable evaluation process is required.
43. Bidding requirements in reverse bidding auction
A procuring entity may ensure that the requirements in electronic reverse auction include the—
(a) date and time of the auction;
(b) conditions and rules for participation or valid bid reductions for electronic reverse auction;
(c) information which shall be made available to bidders in the course of the electronic reverse auction and, where appropriate, when that information shall be made available to bidders; or
(d) any other relevant information relating to the electronic reverse auction process.
44. Advertising in electronic reverse auction
(1) A procuring entity shall issue an invitation through the e-GP system to pre-qualified bidders informing the bidders of the date and time of the electronic reverse auction.
(2) A procuring entity shall advertise a notification of an electronic reverse auction on the appropriate section of the e-procurement portal.
(3) An advertisement made under sub-regulation (2) shall include all the specifications, terms and conditions for the proposed contract and a sample contract which shall be made available online with the advertisement.
(4) The advertisement period shall be from the date of publication of the electronic reverse auction on the e-procurement portal.
45. Operation of electronic reverse auction
(1) A procuring entity shall operate the electronic reverse auction according to the information specified in the invitation to the e-auction.
(2) A procuring entity shall ensure the identity of bidders is kept confidential during the phase of the electronic reverse auction.
(3) The e-GP system shall collect electronically and without human intervention, anonymous bids which shall be automatically ranked by the system.
(4) The e-GP system shall automatically inform bidders through e-mail of the new ranking as the ranking shall occur, including the price in a way that bidders shall be able to ascertain the ranking at any given time.
(5) All invalid bids submitted shall be rejected with a message explaining the reasons for the rejection.
(6) A procuring entity shall not provide any additional information or clarification related to the electronic reverse auction that may distort competition, and where it is necessary to provide the additional information or clarification, the information shall be through the appropriate section of the e-GP system accessible to all bidders.
(7) A procuring entity shall close the electronic reverse auction at the time and date as published in the advertisement made under regulation 44.
(8) A procuring entity may extend the time for closure of the electronic reverse auction in accordance with these Regulations.
(9) Where the closure of the electronic reverse auction is extended under sub-regulation (8), the e-GP system shall inform the bidders of the extension.
46. Correspondence, amendments and clarifications
(1) A procuring entity shall post simultaneously all pre-electronic reverse auction clarifications and amendments of the bidding documents, and pre-electronic reverse auction meetings onto the appropriate section of the e-procurement portal, and where possible e-mail to potential bidders who previously expressed interest.
(2) A procuring entity may hold online pre-electronic reverse auction meetings and online conferencing before an electronic reverse auction commences.
(3) A procuring entity shall track and record, for audit purposes, modifications to any of the procedures, operations, specifications or conditions on the electronic reverse auction.
(4) A procuring entity shall not make available electronic reverse auction meetings and clarifications, including online conferencing and chat facilities, when an electronic reverse auction is in progress.
(5) A procuring entity shall issue an addendum electronically and the information contained in the addendum shall be provided to all bidders at the same time.
(6) All clarifications and addenda to the solicitation document shall be binding on all bidders.
47. Access to electronic reverse auction process
(1) An eligible bidder who is registered in accordance with these Regulations shall have access to electronic reverse auction process which shall be open, equal and unrestricted to all eligible bidders.
(2) Where the suppliers are pre-qualified before the electronic reverse auction, the pre-qualification process shall be conducted online in the e-GP system or offline in accordance with the Act, these Regulations, circulars and instructions issued by the Authority.
(3) A procuring entity shall not use an electronic reverse auction where pre-qualification has reduced the number of bidders to a level that materially affects competition, and under no circumstances shall there be less than three independent bidders.
48. Contract award under electronic reverse auction
(1) A procuring entity shall award a contract under electronic reverse auction based on ranking of prices at the lowest price to the corresponding qualified bidder.
(2) A procuring entity shall, as soon as is practicable, publish a contract award from electronic reverse auction online in the appropriate section of e-GP system, and the name of the successful bidder and the awarded price.
(3) A procuring entity and a bidder shall not engage in any negotiation during or after the electronic reverse auction process is closed.
49. Progress, monitoring and control of contract awarded under electronic reverse auction
(1) A contract awarded under the electronic reverse auction shall be managed in accordance with Part XVI of these Regulations.
(2) The e-GP system shall provide a tracking mechanism for all contracts.
(3) A procuring entity shall, for the purposes of a contract awarded under the electronic reverse auction, appoint a contract manager who shall have responsibilities as provided in Part XVI of these Regulations.
(4) A contract manager appointed under sub-regulation (3) shall, where a contract needs to be amended by the e-GP system, notify the Procurement Unit through e-notification to commence the process of amending the contract and the provisions of regulation 217 shall apply for the purposes of the amendment.
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