The satirical novella Animal Farm has a popular saying that “all animals are equal but some are more equal than others”.
This principle is very common in public procurement, where there is a requirement for all suppliers to be treated as equals and at the same time, there is equitable treatment of suppliers.
By NYASHA CHIZU
The distinction of equal treatment and equitable treatment then becomes confusing to many.
These principles are applied together with the principles of fair treatment of suppliers.
The principle of equal treatment relates to the recognition that all companies are equal in that there are separate legal personas with equal rights like any other citizen.
Such companies have the privileges that apply to corporate bodies in terms of the Companies Act, as read in conjunction with applicable sections of Chapter 4 of the Constitution of Zimbabwe on Declaration of Rights.
In procurement, equal rights relate to the application of the same laws to the same tender process. This implies that all participants are given information about the availability of a tender at the same time.
The laws of public procurement prescribe the manner in which tender advertisements are communicated to ensure that the fundamentals of equal treatment are satisfied. All participants must receive the information at the same time.
One might wonder why tenders specify time-lines to respond. The main reason is to ensure that all participants are treated equally in terms of the time allowed to prepare responsive bids.
Every potentially bidder is given the same time to respond to a tender, thereby, satisfying the equal treatment principle.
Where tenders are queried and clarifications are issued, the principle of equal treatment points to the fact that all participants must receive the clarification that was sought, as well as the answer concurrently. All this is in an effort to ensure participants are treated equally.
In view of the principle of fairness, public procurement protects the sources of the queries and the requirement is that all bidders receive the issue queried and the response given without disclosing the source of the query.
Disclosing the source of the query is regarded unfair to the originator of the query in that it unfairly exposes who might be involved in the race for a tender.
To ensure equal treatment, the evaluation criteria stated in tender documents applies equally to all and most laws are very specific on that matter.
They specify that requirements for qualification of suppliers shall apply equally to all participants and that they must be set out in the tender documents.
Procuring entities are not allowed to impose any criteria other than those provided by the law and together with those set out in the tender document.
The same provision provides for equity, where the laws take into consideration that some companies are more powerful than others.
Most laws are trying to use public procurement for national development to promote local industries.
Equitable treatment takes into consideration that industry is made up of small and medium enterprises, as well as large corporates.
An example to illustrate this principle is the different height at different stages of growth of individuals.
Where such individuals are watching soccer and there is a barrier like a perimeter wall that obstructs shorter individuals, it will be necessary to provide each one with a wedge that compensates their height, so that they benefit equally with taller individuals that are not obstructed.
There are various means of providing the wedge necessary for such individuals in a procurement process in the public sector.
This is necessary because all despite their background or size, are required to pay taxes that are a source of funding for public procurement.
Some procurements are limited to particular classes of suppliers to satisfy the requirement for equitable treatment.
This allows for competition among companies with similar characteristics to achieve fairness.
In some procurement, disadvantaged companies may be given points or some margin of preference at the time of award.
All this is applied in an effort to achieve equitable treatment of suppliers.
The principles of fair, equitable and equal treatment of suppliers are important in public procurement.