Zambia Act or statute

Zambia legislation

Public Procurement (Amendment) Act, 2023

amendmentbid evaluationbid evaluation documentsbidder disqualificationbidder eligibilitybiddingbidding eligibilitycontract administrationcontract amendmentcontract approvalscontract variationdispute resolutionelectronic reverse auctionevaluationgovernment procurementlegislation amendmentlegislative amendmentpricingprocurementprocurement approvalsprocurement committee notificationprocurement complianceprocurement confidentialityprocurement eligibilityprocurement methodsprocurement participationprocurement proceduresprocurement processprocurement terminologypublic procurementpublic purchasingreportingselectionstatutory cross-referencestatutory repealsubcontractingsupplier partnering

Jurisdiction: Zambia
Structure: 37 provisions
Citation: Act 17 of 2023
Dates: Undated source snapshot

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Purpose and legislative effect

“This provision amends section 3(2) and (3) of the principal Act by replacing the phrase “defence or international relations” with “defence, currency or international relations.””

This provision amends section 3(2) and (3) of the principal Act by replacing the phrase “defence or international relations” with “defence, currency or international relations.” Section 4 amends section 4(1) and (2) of the principal Act by deleting the words “and the Treasury” wherever they appear. Section 12(4) of the principal Act is amended by replacing “Authority” with “relevant approvals authority”. Standard procurement documents are generally not confidential, but several listed procurement-related documents and post-selection materials are excepted. This provision amends Section 15(2)(a) of the principal Act by deleting the word “except”.

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Section 3

This provision amends section 3(2) and (3) of the principal Act by replacing the phrase “defence or international relations” with “defence, currency or international relations.”

Section 3

Section 34 of the principal Act is amended by the deletion

Section 34 is replaced so that certain procurement stages need prior authorisation from the relevant approvals authority.

Section 12

The principal Act is amended by the insertion of the

This section amends the principal Act by inserting a new section after section 51 titled “Government to Government procurement.”

Section 19

The principal Act is amended by the repeal of section 77

This section amends the principal Act by repealing section 77 and replacing it with new text.

Section 26

Section 105 of the principal Act is amended

Section 105 is amended, and an appropriate authority must submit a report to the Authority within 14 days after receiving a recommendation from the Authority.

Section 33

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Showing 37 of 37 provisions

Substitution 14Amendment 11Repeal 10Commencement

§ 3Section 3Substitution

This provision amends section 3(2) and (3) of the principal Act by replacing the phrase “defence or international relations” with “defence, currency or international relations.”

3. Section 3 (2) and (3) of the principal Act is amended by the deletion of the words “defence or international relations” wherever the words appear and the substitution therefor of the words “defence, currency or international relations”. Amendment of section 4

Section 3Verify source

§ 4Section 4Amendment

Section 4 amends section 4(1) and (2) of the principal Act by deleting the words “and the Treasury” wherever they appear.

4. Section 4 (1) and (2) of the principal Act is amended by the deletion of the words “and the Treasury” wherever the words appear. Amendment of section 12 Amendment of section 14

Section 4Verify source

§ 5Section 5Substitution

Section 12(4) of the principal Act is amended by replacing “Authority” with “relevant approvals authority”.

5. Section 12 (4) of the principal Act is amended by the deletion of the word “Authority” and the substitution therefor of the words “relevant approvals authority”.

Section 5Verify source

§ 6Section 6Substitution

Standard procurement documents are generally not confidential, but several listed procurement-related documents and post-selection materials are excepted.

6. Section 14 of the principal Act is amended— (a) in subsection (3), by the deletion of paragraph (i) and the substitution therefor of the following: (i) an Appeal Form;; and (b) by the deletion of subsection (5) and the substitution therefor of the following: (5) The information contained in the standard procurement documents shall not be confidential except— (a) the contents of expressions of interest, pre-qualification applications, bids, proposals, note taking books, minutes of bid evaluation meetings, comments or remarks on each expression of interest, pre-qualification application, bid or proposal after the contractor selection result is published; (b) a request for clarification of bids or proposal made by the procuring entity and responses to those requests submitted by bidders during the bid evaluation process after publication of the contractor selection results; Public Procurement (Amendment) [No. 17 of 2023 285 (c) reports made by the procuring entity, by the evaluation team, appraisal reports, reports of consultants or other related reports in the selection process after publication of the contractor selection results; and (d) other relevant documents in the selection process that are marked “confidential” in accordance with this Act, or other written law.

Section 6Verify source

§ 7Section 7Amendment

This provision amends Section 15(2)(a) of the principal Act by deleting the word “except”.

7. Section 15 (2) (a) of the principal Act is amended by the deletion of the word “except”.

Section 7Verify source

§ 8Section 8Amendment

This section amends Section 17(3) of the principal Act by deleting paragraph (e).

8. Section 17 (3) of the principal Act is amended by the deletion of paragraph (e).

Section 8Verify source

§ 9Section 9Substitution

A bidder who contravenes subsection (1) is disqualified, under prescribed procedures, from taking part in any existing procurement proceeding.

9. Section 18 (4) of the principal Act is amended by the deletion of paragraph (a) and the substitution therefor of the following: Amendment of section 15 Amendment of section 17 Amendment of section 18 (a) a bidder contravenes subsection (1), that bidder is disqualified, on procedures as prescribed, from participating in any existing procurement proceeding;.

Section 9Verify source

§ 10Section 10Substitution

This section amends section 19(6) by replacing “person or a relative” with “person, relative or associate”.

10. Section 19 (6) of the principal Act is amended by the deletion of the words “person or a relative” and the substitution therefor of the words “person, relative or associate”. Amendment of section 19

Section 10Verify source

§ 11The principal Act is amended by the deletion of section 29Substitution

This provision replaces section 29(2) and requires a controlling officer or chief executive officer to tell the Authority who is on the Procurement Committee within 14 days of appointment or any membership change.

11. The principal Act is amended by the deletion of section 29 (2) and the substitution therefor of the following: Amendment of section 29 (2) A controlling officer or Chief executive officer shall inform the Authority of the membership of the Procurement Committee not later than fourteen days of the date of appointment of the Procurement Committee or of any change in the membership of the Procurement Committee.

Section 11Verify source

§ 12Section 34 of the principal Act is amended by the deletionRepeal

Section 34 is replaced so that certain procurement stages need prior authorisation from the relevant approvals authority.

12. Section 34 of the principal Act is amended by the deletion of subsection (1) and the substitution therefor of the following: Amendment of section 34 (1) The following stages of the procurement process require the prior authorisation of the relevant approvals authority: (a) the use of the limited or direct bidding methods of procurement, except where direct bidding is on the grounds of the low value; 286 No. 17 of 2023] Public Procurement (Amendment) (b) the use of the limited or direct selection methods of procurement, except where direct selection is on the grounds of low value; (c) solicitation documents prior to their issue; (d) evaluation reports prior to any further bid opening, the subsequent stage of evaluation or notification of award; (e) any other documents incorporating contract award recommendations, such as reports on negotiations, prior to notification of award; (f) amendments to contracts prior to their issue; (g) the cancellation of procurement proceedings; and (h) the termination of a contract. Repeal and replacement of section 36

Section 12Verify source

§ 13The principal Act is amended by the repeal of section 36Repeal

This section amends the principal Act by repealing section 36 and replacing it with new text titled “Use of procurement or agent service provider.”

13. The principal Act is amended by the repeal of section 36 and the substitution therefor of the following: Use of procurement or agent service provider

Section 13Verify source

§ 36A procuring entity may, in accordance with thisAmendment

A procuring entity may appoint a procurement agent or procurement service provider to carry out procurement functions on its behalf, subject to the Act and any prescribed requirements.

36. A procuring entity may, in accordance with this Act, as prescribed, appoint a procurement agent or procurement service provider to carry out procurement functions on its behalf. Amendment of section 37

Section 36Verify source

§ 14Section 37 of the principal Act is amended by the insertionAmendment

Section 37 is amended to add a new paragraph on government-to-government procurement.

14. Section 37 of the principal Act is amended by the insertion of the following new paragraph immediately paragraph after (o): (p) Government to Government procurement.

Section 14Verify source

§ 15Section 39 of the principal Act is amendedSubstitution

The provision amends section 39 to limit open national bidding to citizen and local bidders, give citizen bidders priority in bid evaluation, add new cases for subsection (4), and change “shall” to “may” in subsection (7).

15. Section 39 of the principal Act is amended— Amendment of section 39 (a) by the deletion of subsection (2) and the substitution therefor of the following: (2) Participation in open national bidding shall be limited to citizen and local bidders, except that citizen bidders shall be given priority in the evaluation of bids as prescribed.; (b) in subsection (4) by the insertion of the following new paragraphs immediately after paragraph (b): (c) engaging an original equipment manufacturer or original product manufacturer may reduce on third party associated costs, ensure delivery reliability and quality assurance; or Public Procurement (Amendment) [No. 17 of 2023 287 (d) a procuring entity operates in a specialised industry and the goods, works or non consulting services to be procured are of a specialised nature.; and (c) in subsection (7), by the deletion of the word “shall” and the substitution therefor of the word “may”.

Section 15Verify source

§ 16Section 41 of the principal Act is amendedSubstitution

Section 41 is amended to limit open national selection to citizen and local bidders, give citizen bidders priority in proposal evaluation, and require a local bidder that wins a contract to partner with a citizen supplier.

16. Section 41 of the principal Act is amended — Amendment of section 41 (a) in subsection (2) by the insertion of the following new paragraph immediately after paragraph (b): (c) a procuring entity operates in a specialised industry and the consulting services to be procured are of a specialised nature.; (b) by the deletion of subsection (3) and the substitution therefor of the following: (3) Participation in open national selection shall be limited to citizen and local bidders, except that citizen bidders shall be given priority in the evaluation of proposals as prescribed.; (c) by the insertion of the following new subsection immediately after subsection (3): (4) A local bidder awarded a procurement contract in accordance with subsection (3) shall partner with a citizen supplier.; (d) in subsection (5) by the deletion of the word “shall” and the substitution therefor of the word “may”; and (e) by the renumbering of subsections (4), (5) and (6) as subsection (5), (6) and (7), respectively.

Section 16Verify source

§ 17The principal Act is amended by the repeal of section 48Repeal

This section amends the principal Act by repealing section 48 and replacing it with new text.

17. The principal Act is amended by the repeal of section 48 and the substitution therefor of the following:

Section 17Verify source

§ 48(1) The objective of electronic reverse auction isRepeal

Electronic reverse auction may be used only when the procurement can be described in detail, competition is expected, and bid criteria are measurable in money terms; the procuring entity must also have a procurement portal and Authority-approved secure software.

48. (1) The objective of electronic reverse auction is to enable a procuring entity to seek competitive pricing by inviting pre-qualified suppliers to participate in a real time dynamic online procurement proceeding. (2) A procuring entity may use electronic reverse auction, if— (a) it is feasible for the procuring entity to formulate a detailed description of the subject matter of the procurement; Repeal and replacement of section 48 Electronic reverse auction 288 No. 17 of 2023] Public Procurement (Amendment) (b) there is a competitive market of bidders anticipated to be qualified to participate in the electronic reverse auction to ensure effective competition; and (c) the criteria to be used by the procuring entity in determining the successful bid are quantifiable and can be expressed in monetary terms. (3) A procuring entity shall only qualify to use the reverse auction method if it has— (a) a procurement portal; and (b) an appropriate secure software with electronic procurement capabilities and functionalities approved by the Authority.

Section 48Verify source

§ 18Section 51 of the principal Act is amendedSubstitution

Section 51 is amended to replace “Government agency” with “procuring entity” and to say that Section 89 does not apply to purchases under this section.

18. Section 51 of the principal Act is amended— (a) in subsections (1) and (2) by the deletion of the words “Government agency” wherever the words appear and the substitution therefor of the words “procuring entity”; and (b) by the insertion of the following new subsection immediately after subsection (2): (3) Section 89 of this Act shall not apply to purchases under this section. Amendment of section 51 Insertion of section 51A

Section 18Verify source

§ 19The principal Act is amended by the insertion of theAmendment

This section amends the principal Act by inserting a new section after section 51 titled “Government to Government procurement.”

19. The principal Act is amended by the insertion of the following new section immediately after section 51: Government to Government procurement

Section 19Verify source

§ 51AThe objective of Government to GovernmentAmendment

This section says government-to-government procurement is meant to let a procuring entity buy goods, works, or services from a foreign State and gain that State’s expertise and development experience.

51A. The objective of Government to Government procurement is to enable a procuring entity to acquire goods, works or services from a foreign State and to benefit from the expertise and development experience from that foreign State. Amendment of section 56

Section 51AVerify source

§ 20Section 56 of the principal Act is amendedRepeal

Section 56 of the principal Act is amended by deleting one paragraph, renumbering the remaining paragraphs, and removing specific words from subsection (3).

20. Section 56 of the principal Act is amended— (a) in subsection (2)— (i) by the deletion of paragraph (a); and (ii) the re-numbering of paragraphs (b) and (c) as paragraphs (a) and (b), respectively; and Public Procurement (Amendment) [No. 17 of 2023 289 Repeal and replacement of section 66 Evaluation (b) in subsection (3) by the deletion of the words “or funds are available for the procurement”.

Section 20Verify source

§ 21The principal Act is amended by the repeal of section 66Repeal

This section repeals section 66 of the principal Act and replaces it with new text.

21. The principal Act is amended by the repeal of section 66 and the substitution therefor of the following:

Section 21Verify source

§ 66(1) A procuring entity shall establish an evaluationAmendment

A procuring entity must establish an evaluation committee and prepare an evaluation report; it may request bid clarifications, correct arithmetical errors, and do post-qualification, but it may not change bid substance or negotiate with bidders.

66. (1) A procuring entity shall establish an evaluation committee for the purposes of electronic or non-electronic evaluation of bids. (2) The composition, functions, procedures and sittings of an evaluation committee shall be prescribed. (3) The evaluation methodology and criteria shall be done in accordance with this Act and may be determined by— (a) the type, value and complexity of the procurement; (b) the price; (c) the cost of operating, maintaining and repairing goods or of construction; (d) the time of delivery of the goods, of construction or provision of services; (e) the characteristics of the subject matter of the procurement; (f)the terms of payment and guarantees relating to the subject matter of procurement; or (g) where relevant, the experience, reliability and professional and managerial competence of the supplier or contractor and of the personnel involved in providing the subject matter of the procurement. (4) In addition to the criteria set out in subsection (3), the determination of the evaluation methodology may also take into account a margin of preference for the benefit of domestic suppliers or contractors or of domestically produced goods, or any other preference. 290 No. 17 of 2023] Public Procurement (Amendment) (5) A procuring entity may request a bidder to clarify the bid in order to assist in the evaluation, but changes in the substance of the bid, including changes in price, shall not be permitted— (a) following a clarification under this section or other provisions of this Act; or (b) after the date and time of the closing of the bid, unless otherwise provided for in this Act. (6) A procuring entity may correct arithmetical errors that are discovered during the examination of the submissions and shall promptly notify the bidder that presented the submission of that correction. (7) A procuring entity that corrects an error in accordance with subsection (6) shall not make a— (a) substantive change to the qualification information or to a submission; (b) change aimed at making an unqualified bidder qualified or an unresponsive submission responsive; or (c) change aimed at making a qualified bidder or a responsive submission unresponsive. (8) A procuring entity shall not— (a) engage in a negotiation with a bidder with respect to qualification information or submissions; or (b) make a change in the unit price following a clarification under subsection (5) or other provisions of this Act. (9) A procuring entity may undertake a post-qualification procedure in accordance with the criteria in the solicitation document, to determine whether the best evaluated bidder has the capability and resources to effectively carry out the contract. (10) A procuring entity shall prepare an evaluation report for submission to the appropriate approvals authority. Public Procurement (Amendment) [No. 17 of 2023 291

Section 66Verify source

§ 22Section 68 (4) of the principal Act is amended by theAmendment

This provision amends section 68(4) by adding a new paragraph stating that the lowest evaluated price must be above the market price.

22. Section 68 (4) of the principal Act is amended by the insertion of the following new paragraph immediately after paragraph (c): Amendment of section 68 (d) the lowest evaluated price is above the market price.

Section 22Verify source

§ 23Section 71 (2) of the principal Act is amended by the deletionSubstitution

Section 71(2) is amended: the word “ten” is replaced with “five”.

23. Section 71 (2) of the principal Act is amended by the deletion of the word “ten” and the substitution therefor of the word “five”. Amendment of section 71

Section 23Verify source

§ 24Section 72 of the principal Act is amended inRepeal

Section 72 is amended so that, for contracts above the prescribed threshold for simplified bidding or simplified selection, any required approvals include legal advice from the Attorney-General.

24. Section 72 of the principal Act is amended in— (a) subsection (2) by the deletion of paragraph (e) and the substitution therefor of the following: Amendment of section 72 Amendment of section 76 Repeal and replacement of section 77 Amendment or variation of contract (e) any other approvals required, including the legal advice of the Attorney-General on a contract which is above the prescribed threshold for simplified bidding or simplified selection; and (b) subsection (4) by the deletion of the words “Treasury and the”.

Section 24Verify source

§ 25Section 76 (1) of the principal Act is amended by theAmendment

The principal Act is amended so that “in writing” is added after “contract manager” in section 76(1).

25. Section 76 (1) of the principal Act is amended by the insertion of the words “in writing” immediately after the words “contract manager”.

Section 25Verify source

§ 26The principal Act is amended by the repeal of section 77Repeal

This section amends the principal Act by repealing section 77 and replacing it with new text.

26. The principal Act is amended by the repeal of section 77 and the substitution therefor of the following:

Section 26Verify source

§ 77(1) Subject to section 72 (2) (e), an amendment orAmendment

Contract amendments or variations need Attorney-General approval and legal advice; quarterly reports on varied or amended procurement contracts must be sent to the Authority.

77. (1) Subject to section 72 (2) (e), an amendment or variation to a contract shall not be effected without the approval and the legal advice of the Attorney-General. (2) The cumulative value of contract variation and amendment shall not result in an increment of the total contract price by more than twenty-five percent of the original contract price as prescribed, except that where the variation results in an increment exceeding twenty-five percent, the contract shall be cancelled and the procurement re-tendered. (3) A controlling officer or chief executive officer shall submit a quarterly report of the varied or amended procurement contracts to the Authority. (4) A controlling officer or chief executive officer who contravenes subsection (3) commits an offence. 292 No. 17 of 2023] Public Procurement (Amendment) Amendment of section 84 Amendment of section 89

Section 77Verify source

§ 27Section 84 (4) (b) of the principal Act is amended bySubstitution

This provision amends section 84(4)(b) of the principal Act by replacing the word “ten” with “fifteen”.

27. Section 84 (4) (b) of the principal Act is amended by deletion of the word “ten” and the substitution therefor of the word “fifteen”.

Section 27Verify source

§ 28Section 89 of the principal Act is amendedCommencement

A bidder may participate in procurement only if it meets the listed eligibility conditions, including legal capacity, solvency, tax and social security compliance, no misrepresentation, no relevant recent convictions, no conflict of interest, and, for foreign bidders, partnership with a citizen supplier unless an exception applies.

28. Section 89 of the principal Act is amended— (a) by the deletion of subsection (1) and the substitution therefor of the following: (1) A bidder is eligible to participate in a procurement if — Act No. 9 of 2017 (a) the bidder has the legal capacity to enter into a contract; (b) the bidder is solvent and not in receivership, or any business rescue proceedings or the subject of legal proceedings under the Corporate Insolvency Act, 2017; (c) is licensed and in good standing with the professional body to which the bidder is aligned, where applicable; (d) the bidder has fulfilled the bidder’s obligation to pay taxes and social security contributions; (e) the bidder does not misrepresent the bidder’s bid status in relation to a bid by fronting or any other similar manner; (f) the bidder’s directors or officers have not been convicted of any criminal offence related to professional conduct or the making of false statements or misrepresentations as to qualifications for entering into a contract within a period of five years preceding the commencement of the procurement proceedings; (g) the bidder does not have a conflict of interest in relation to the procurement requirement; Public Procurement (Amendment) [No. 17 of 2023 293 (h) in the case of a foreign bidder that bidder partners with a citizen supplier; and (i) the bidder has not been suspended or fined and suspended from participating in public procurement in accordance with section 95, 96 and 97.; (b) by the insertion of the following new subsection immediately after subsection (1): (2) Subsection (1)(h) does not apply to an original equipment manufacturer or franchise holder.; (c) by the re-numbering of subsections (2), (3), (4) and (5) as subsections (3), (4), (5) and (6), respectively; and (d) by the insertion of the following new subsection immediately after subsection (6): (7) Despite subsections (1), (2), (3), (4) and (5), the eligibility requirements for community participation shall be prescribed.

Section 28Verify source

§ 29Section 93 of the principal Act is amendedSubstitution

A procuring entity must require bidders or suppliers to subcontract part of the value of certain works procurements to citizen bidders and suppliers.

29. Section 93 of the principal Act is amended— (a) by the deletion of subsection (1) and the substitution therefor of the following: Amendment of section 93 (1) A procuring entity shall, for the purposes of this Act and any other written law, require a foreign or local bidder or supplier to subcontract a percentage of the total value of the procurement for procurements of works exceeding the prescribed thresholds to citizen bidders and suppliers.; and (b) in subsection (3) by the deletion of the words “A foreign bidder or supplier” and the substitution therefor of the words “A local bidder or supplier and a foreign bidder or supplier”.

Section 29Verify source

§ 30Section 97 of the principal Act is amendedRepeal

This amendment changes the penalty in section 97 to a fine of two million penalty units or 5% of a bidder’s bid sum, and makes a second-time liable bidder permanently barred from public procurement.

30. Section 97 of the principal Act is amended— Amen dment of section 97 (a) in subsection (1) by the deletion of the words “permanently prohibit” and the substitution therefor of the words “fine and suspend”; 294 No. 17 of 2023] Public Procurement (Amendment) (b) by the insertion of the following new subsections immediately after subsection (1): (2) A fine in subsection (1) shall be two million penalty units or five percent of a bidder’s bid sum. (3) A bidder who is found liable for a second time under subsection (1) shall be prohibited permanently from participating in public procurement. Repeal and replacement of section 99 Appeal against decision of Authority Amendment of section 100

Section 30Verify source

§ 31The principal Act is amended by the repeal of section 99Repeal

This section amends the principal Act by repealing section 99 and replacing it with new text.

31. The principal Act is amended by the repeal of section 99 and the substitution therefor of the following:

Section 31Verify source

§ 99A bidder or supplier aggrieved by a decision of theProvision

A bidder or supplier who is aggrieved by a decision of the Authority may refer the matter to arbitration within 10 working days of that decision.

99. A bidder or supplier aggrieved by a decision of the Authority may submit the matter to arbitration within ten working days of the Authority’s decision.

Section 99Verify source

§ 32Section 100 of the principal Act is amended inSubstitution

This provision amends section 100 of the principal Act by changing two references: one from “ten” to “five” in subsection (3), and one from “ten” to “fifteen” in subsection 4(c).

32. Section 100 of the principal Act is amended in— (a) subsection (3) by the deletion of the word “ten” and the substitution therefor of the word “five”; and (b) subsection 4(c) by the deletion of the word “ten” and the substitution therefor of the word “fifteen”. Amendment of section 105

Section 32Verify source

§ 33Section 105 of the principal Act is amendedSubstitution

Section 105 is amended, and an appropriate authority must submit a report to the Authority within 14 days after receiving a recommendation from the Authority.

33. Section 105 of the principal Act is amended— (a) in subsection (5) by the deletion of the words “the employer appropriate” and the substitution therefor of the words “an appropriate authority”; and (b) by the insertion of the following new subsection immediately after subsection (5): (6) An appropriate authority shall submit a report to the Authority on the action taken under subsection (4) within fourteen days of receipt of a recommendation from the Authority.

Section 33Verify source

Legislative relationships

9 referenced instruments

Names are derived from the stored provision headings and citation-enrichment layer. Treat this as a research index and verify each relationship against the source text.

N–S

8 instruments

of section 36 This section amends the principal Act
Section 13
of section 48 This section amends the principal Act
Section 17
of section 66 This section repeals section 66 of the principal Act
Section 21
of section 77 This section amends the principal Act
Section 26
of section 99 This section amends the principal Act
Section 31
principal Act
Sections 7, 8, 27, 32
section 3(2) and (3) of the principal Act
Section 3
section 4(1) and (2) of the principal Act
Section 4

T–Z

1 instrument

This section amends the principal Act
Section 19

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