Chronicle Editor
Section 73 of the Public Procurement Disposal of Public Assets Act [Chapter 22:23] highlights the procedure to be taken by an aggrieved party to a procurement process conducted or is being conducted by a procuring entity.
The aggrieved party may lodge a complaint to the procuring entity highlighting any breach in the process which the complainant is claiming to have suffered, or likely to suffer, whether its loss of business or income or injury due to a breach of a duty imposed on a procuring entity in accordance with the Public Procurement Disposal of Public Assets Act.
This complaint may come in the form of a challenge to the procurement proceedings in which case the complainant is expected to make clear the alleged breach of duty, in writing, with the complainant’s name and address, this is to ensure the complainant was indeed a part of the procurement process and allows to the procuring entity the opportunity to respond to the claimant.
Important to note is that the written notice must be sent to the procuring entity whose procurement proceedings the complainant is challenging, not to the Procurement Regulatory Authority of Zimbabwe (Authority), the Authority may be copied in the notice but should not be the primary recipient of a complaint, as the procurement process originates from the procuring entity whose procurement process is being challenged.
The complaint may be made at any time during the procurement process, however there are varying procedures depending at what stage the procurement process was, at the time the complaint was made. In the first instance, where the written notice is sent, when the notice of the contract award has not been issued the written notice may be lodged at any stage of the procurement proceeding up to the date the notice is issued.
However, where the grounds for a challenge which shall be contained in the written notice allege improprieties in the invitation to bid or to pre-qualify before bid opening, the written notice should be lodged before the bid opening.
In the second instance where the notice of the contract award has been issued the written notice to challenge may be lodged only within the fourteen-day period starting from date of contract award.
This fourteen-day period is referred to as the Bid Validity period and is contained in section 55(2) of the Public Procurement and Disposal of Assets Act [Chapter 22:23] this section compels procuring entities to notify both the winning bidder and other participating bidders the proposed award including the name of the winning bidder and winning price of the award.
The contract shall not be signed until this period has lapsed. Important to note, the fourteen days referred to are fourteen working days meaning every day of the week except for Saturday, Sunday and Public Holidays.
As highlighted earlier it is imperative for the written notice to contain the identity of the complainant and identify specific acts or omissions alleged to constitute a breach of duty on the part of the procuring entity.
If these details are not contained in the written notice of complaint the procuring entity has no legal obligation to entertain the complaint and the challenge to procurement proceedings shall end there, unless the complainant rectifies the omission within the fourteen days.
In addition, the Public Procurement and Disposal of Public Assets Act [Chapter 22:23] requires that a complainant who wishes to challenge the procurement proceeding of a procuring entity must accompany their written notice with a prescribed amount of money deposited with the procuring entity by way of security for costs.
This amount can be determined by referring to the Third Schedule of the Public Procurement and Disposal of Public Assets (General) Regulations 2018 published in Statutory Instrument 5 of 2018. Once again without this requirement being fulfilled the complaint may not be entertained.
The procuring entity, once all the above requirements are met, may either concede that indeed it breached a duty as alleged in the challenge and as such shall notify within five working days the complainant and the Authority of its concession and shall take whatever steps it considers necessary or as the Authority may direct to rectify the breach.
The process if the procuring entity does not concede is contained in the sections to follow which shall be the focus of next week’s Public Procurement Matters article.
Online Reporter