Source: Participation by bidders | The Herald August 8, 2019
One of the objectives of the Public Procurement and Disposal of Public Assets (PPDPA) Act Chapter [22:23] is to promote competition among bidders. Section 28 of the PPDPA Act outlines participation by bidders. Except as prescribed under this Act or any other enactment, bidders shall be permitted to participate in procurement proceedings without regard to nationality.
Eligibility and qualification criteria
Bidders are required to meet the criteria in Section 28 of the Act to be eligible to participate in public procurement and to be qualified for the proposed contract. Bidders must therefore provide any available documentation and certify their eligibility.
To be eligible, bidders must;
Have the legal capacity to enter into a contract;
Not be insolvent, in receivership, bankrupt or being wound up, not have had business activities suspended and not be the subject of legal proceedings for any of these circumstances;
Have fulfilled their obligations to pay taxes and social security contributions in Zimbabwe;
Not have a conflict of interest in relation to this procurement requirement;
Not be debarred from participation in public procurement under section 72 (6) of the Act and section 74(1) (c), (d) or (e) of the Regulations or declared ineligible under section 99 of the Act;
Have the nationality of an eligible country as specified in the Special Conditions of Contract; and
Have been registered with the Procurement Regulatory Authority of Zimbabwe as a Supplier and have paid the applicable Supplier Registration Fee set out in Part III of the Fifth Schedule of the Regulations.
Where the procurement is below the threshold in Section 10 (3) of the Regulations and bids are being invited from Zimbabwean suppliers only. It is therefore the duty of the Procuring Entity to state that “Participation in this bidding procedure is restricted to Zimbabwean bidders” whenever it’s necessary to do so and also state any documentation required as evidence of the nationality of the bidder.
Additional requirements on eligibility
Subject to section 28 of the PPDPA Act, a Procuring Entity may require bidders to meet further of the following criteria for eligibility as the procuring entity considers appropriate and relevant in the circumstances of the particular procurement. The requirements may be that bidders must meet specified ethical standards and that neither they nor any of their officers have, in the five years immediately preceding the initiation of the procurement proceedings been convicted in any country of an offence related to their professional conduct or the making of false statements or misrepresentations as to their qualifications. The Procuring Entity may require any other criteria that will demonstrate that the bidders possess the professional and technical qualifications and competence, financial resources, equipment and other physical facilities, managerial capability, experience, business reputation and personnel, needed to perform the procurement contract.
In the spirit of fairness, Procuring Entities shall not impose eligibility criteria that are unduly restrictive or designed to reduce competition, and shall prepare them for each procurement requirement, taking into account the size, complexity and technical requirements of the proposed procurement contract. Any requirement imposed pursuant to this section shall be set out in the pre-qualification documents, if any, and in the solicitation documents, and shall apply equally to all bidders.
Ethical responsibilities of bidders and contractors
According to Section 42 of PPDPA Act, Procuring Entities shall ensure that the ethical responsibilities of bidders and contractors are stated in the bidding documents and that submission of a bid is deemed to be an undertaking to accept these responsibilities.
When bidders and contractors may be debarred
Subject to the Act and more specifically to section 69(1) of Public Procurement and Disposal of Public Assets (General) Regulations, 2018. The Procurement Regulatory Authority, on the recommendation of a procuring entity, or, the Monitoring and Evaluation Department of the Authority, following an investigation carried out by that Department, may debar a bidder or contractor guilty of prohibited conduct from engaging in any public procurement or disposal process for a period determined by the Authority. It is important to note that, Subsection (1) shall not be construed as limiting the right of a procuring entity to reject or refuse to consider a bidder’s bid under section 72 of the PPDPA Act.
Consequences of suspending or debarring bidder or contractor
In section 76(1) of the Public Procurement and Disposal of Public Assets (General) Regulations, 2018, it is stated that bidders or contractors that have been suspended or debarred shall remain liable to fulfil their obligations under any contract they entered into with a procuring or disposing entity before they were suspended or debarred.
The Authority may apply the debarred list of other nationalities and recognised development partners. The suspending or debarring of a bidder or contractor shall apply to any successor in title of the bidder or contractor, where the successor is substantially controlled or influenced by any individual who controlled or influenced the bidder or contractor. Immediately upon the suspension or debarring of a bidder or contractor, the Authority shall enter the name and particulars of the bidder or contractor on the list of suspended or debarred bidders and contractors which the Authority shall post on its website and keep available for public inspection, free of charge, at its offices, and inform all the procuring and disposing entities that the bidder or contractor has been suspended or debarred and the period of suspension or debarment.
While a bidder or contractor is suspended or debarred, no procuring entity or disposing entity shall award a contract to the bidder or contractor, or, have any dealing or communication with the bidder or contractor, except in respect of a contract concluded before the bidder or contractor was suspended or debarred.