HomeBusinessPurchasing and supply: Operational shortcomings of the Procurement Act

Purchasing and supply: Operational shortcomings of the Procurement Act

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There is a new 2011 United Nations Commission on International Trade Law (UNICTRAL) model law on public procurement that replaced the 1994 model law which the Procurement Act (Chapter 22:14) (Act) is based on.

By Nyasha Chizu

The changes were made to harness the principle objective of the UNICTRAL of maximizing economy and efficiency in procurement, fostering and encouraging participation in procurement proceedings by suppliers and contractors regardless of nationality, thereby promoting international trade, promoting competition among suppliers and contractors for the supply of the subject matter in procurement, providing for fair, equal and equitable treatment of all suppliers and contractors promoting integrity of, and fairness and public confidence in the procurement process and achieving transparency in the procedures relating to procurement.

The 1994 model had two sets of procurement methods for goods and construction as per Section 30 of the Act.

This brought about separate procedures for goods and construction as per Section 31 and Services as per Section 32 of the Act.

The model law now has a toolbox approach where there is only one single set of procurement methods for goods, construction work and services.

This has achieved consistency in the rules for different types of procurement.

More consistency has been achieved by moving some Articles to the general part, Chapter 1 that applies to procurement methods generally.

Some of these provisions were in the chapter of the model law dealing with open tendering or had been subject of different provisions that were always not consistent such as issues of disclosure of the award criteria.

Similar to the toolbox approach, some of the old procurement methods have been removed and new ones added.

The principal procurement method of procurement of services has been removed and the old request for proposals method has been developed into three methods namely, request for proposal without negotiation, request for proposal with dialogue and request for proposals with consecutive negotiation.
The grounds for using competitive negotiations and single-source procurement have been further limited.

The Act did not provide for competitive negotiations but allowed for single sourcing on the grounds stated in Section 7 of the Procurement Regulations.

The model law further made for provisions of defence procurement procedures where defence relates not only to military, but all security agents of a country.

There are a number of new additions that include provisions for exclusion of suppliers that do not comply with ethical and other applicable standards.
There are clear guidelines for dealing with sustainable tenders which our current regime cannot reject since the basis of award is the lowest compliant tender.

The new provisions set clear guidelines on e-Procurement that include electronic reverse auctions in public procurement which do not exist in our current Act.

There are further specific guidelines with respect to handling framework agreements.

The processes of handling multi-stage tender procedures are also clear.

This issue is critical given the on-going procurement reforms coupled with the e-Government project.

Adoption of these guidelines will ensure adoption of well thought out systems.

The provisions on supplier reviews and remedies for aggrieved suppliers have been strengthened and a requirement added for a delay between notification of the award decision and actual award, to facilitate challenge.

Issues such as incorporation of horizontal policies that include green procurement and localisation or indigenisation have been detailed.
Further, provisions have been added on conflict of interest and other related matters to support the requirement of the UN Global Compact on fighting corruption.

It is worth to consider in detail the 2011 UNICTRAL Model Law as we reform the procurement laws.

•Nyasha Chizu is a Fellow of the Chartered Institute of Purchasing and Supply writing in his personal capacity. Feedback: nyashachizu@harleyreed.com; Skype: nyasha.chizu

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