Introduction
In the past I have written articles on the Public Procurement and Disposal of Public Assets Act (Chapter 22:23) or (“the Procurement Act”). In this article I look at the laws on the examination of opened bids in public tenders.
Examination of opened bids
This is covered in section 47 of the Procurement Act. According to the Act, following the opening of bids, the procuring entity shall first determine whether bidders meet the qualification criteria, if any, contained in the bidding documents and reject those that do not and then shall examine the bids in order to determine whether the bids are complete and responsive. According to the section, the bidders shall be deemed to have met the qualification criteria if any default of compliance therewith relates simply to the failure to submit company registration or incorporation documents, credentials or other historic documents that can be readily availed or accessed.
Procurement regulations on examination of opened bids
The Public Procurement and Disposal of Public Assets (General) Regulations, 2018 (“the Regulations”) also provide for the examination of bids in section 28 thereof.
According to section 28(1) of the Regulations, for purposes of determining whether opened bids are complete and responsive, a procuring entity shall reject a bid as non- responsive on the ground of lack of qualification where:
- The bidder lacks legal capacity to enter into a contract with the procuring contract.
- Under the law of any country, the bidder is insolvent, bankrupt or being wound up.
- Under the law of any country, the bidder’s business activities have been suspended.
- Legal proceedings have been instituted under the law of any country to sequestrate or wind up the bidder or to place the bidder receivership or to suspend the bidder’s activities.
- The bidder has failed to comply with any obligation to pay taxes or social security contributions in Zimbabwe.
- The bidder is ineligible under the Procurement Act to be awarded a procurement contract.
Lawyers’ confirmation
Legal practitioners are usually asked by clients or bidders to confirm the above areas covered under section 28(1) of the Regulations.
Administrative compliance
According to section 28(2) of the Regulations, for purposes of determining whether the opened bids are complete and responsive, a procuring entity shall regard a bid as administratively compliant where:
- The bidder has submitted a bid security, where it is required, in the correct form and amount.
- The bidder has submitted a bid – securing declaration, where it is required, in the appropriate form.
- The bidder has submitted the bid in the appropriate form.
- The authorisation and signature of the bid is in accordance with the instructions in the bidding document.
- The period for which the bid is correct.
- The bidder has submitted such additional documents as samples in the bidding documents.
According to section 28(4) of the Regulations, where the bidder omits to submit company registration or incorporation documents, credentials or other historic documents as are specified in section 47 of the Act, the entity shall immediately request the bidder, in writing, to submit the missing documents within two days of the request.
Conclusion
It is important for bidders to comply with both the Procurement Act and Regulations. Legal practitioners are usually requested to write to confirm the requirements in section 28(1).
Disclaimer
This simplified article is for general information purposes only and does not constitute the writer’s professional advice.
Godknows (GK) Hofisi, LLB(UNISA), B.Acc(UZ), Hons B.Compt (UNISA), CA(Z), ACCA (Business Valuations) MBA(EBS, Heriot- Watt, UK) is the Managing Partner of Hofisi & Partners Commercial Attorneys, chartered accountant, insolvency practitioner, commercial arbitrator, registered tax accountant and advises on deals and transactions. He has extensive experience from industry and commerce and is a former World Bank staffer in the Resource Management Unit. He sits on the Board of the Council of Estate Administrators in Zimbabwe. He writes in his personal capacity. He can be contacted on +263 772 246 900 or ghofisi@hofisilaw.com or gohofisi@gmail.com. Visit www//:hofisilaw.com for more articles.
