One of the inadequacies that was often cited in connection with the repealed Procurement Act (Cap 22:14) was its limited application with regards to certain procurement process. In order to redress such weaknesses, the Public Procurement and Disposal of Public Assets (Cap 22:23) (PPDPA) Act’s section three (3) provides for application of the Act.
Section 3 states that, this Act shall apply to all stages of the process of the procurement of goods, construction works and services by procuring entities; and the disposal of public assets by procuring entities. There are stages of the procurement cycle.
Thus notwithstanding the special circumstances under which the PPDPA Act shall not apply, every stage of the procurement cycle must be conducted in a manner that is in compliance with the provisions of the Act.
Non-application of regulations in certain circumstances
The PPDPA Act provides strict application of the Act by all procuring entities in all circumstances, consequently the Act and regulations provided some ‘small windows open’ for the non-application of the Act.
The circumstances are:
To the extent that this Act conflicts with an obligation of Zimbabwe under or arising out of any convention, treaty or agreement between Zimbabwe and one or more foreign states or governments; or one or more international financial organisations; the requirements of the convention, treaty or agreement shall prevail.
In other words, the PPDPA Act can be set aside on the basis of a bi-lateral or multi-lateral agreement involving Zimbabwe. The terms of the agreement will take precedence with regards to the conduct of procurement processes.
In line with international best practice, this Act does not apply to the procurement or acquisition of any of the following services:
- a) Fiscal agency or depositary services; or
- b) Liquidation and management services for regulated financial institutions; or
- c) Services related to the sale, redemption and distribution of public debt, including loans and Government bonds, notes and other securities;
- d) Arbitration or conciliation services;
Procurement of goods and services covered public employment contracts are also exempted from the application of the PPDPA Act.
Subsection (4) deserves special mention with regards to non-application of the Act. If any professional services are to be procured from any person who is bound by a statutory tariff in relation to that profession or service, this Act shall apply so as not to require that person to be so bound, and no adverse consequences shall be visited upon that person for not adhering to such tariff.
To put it more clearly, subsection (4) simply sets aside the statutory fees for professional bodies. The Act requires these professionals, like any other supplier, to be subjected to a competitive process which includes financial evaluation.
Procurement by Zimbabwean diplomatic or consular missions outside Zimbabwe need not be conducted in accordance with this Act, but the officers in charge of such missions shall ensure that their procurement is conducted through a competitive process compliant with the general principles set out in this Act.
The regulations do not apply to the leasing of facilities or amenities for sporting purposes or for a specific event, for a period not exceeding 12 months; and accommodation for office space or other purposes, so long as the lease is not for a period of more than three years.
Non-Application due to Security or National Interest
The President, by notice in the Gazette, may declare that it would be contrary to the interests of defence, public security or the national interests of Zimbabwe for the procurement or disposal of any construction works or class of such works to be publicly disclosed, and thereupon this Act shall apply to the procurement or disposal of such works with whatever modifications may be necessary to ensure that information concerning such works, or their procurement or disposal, is not disclosed to the prejudice of the defence, security or national interests of Zimbabwe.
This provision is very much in line with international best practice.
Subsection (7) empowers the Authority, for good cause shown, (by written notice to the Procuring Entity concerned) exempt any procuring entity from compliance with any provision of this Act, and thereupon the provision concerned shall not apply to that procuring entity: provided that the authority shall ensure that a copy of any such exemption is kept at its offices and is open to inspection there by interested persons at all reasonable times.
The spirit behind this provision was to open a window for State Entities operating in commercial environments so that they do not lose their competitiveness for reasons related to compliance with the Act.
Non-Application with regards to Disposals
The Minister, with the approval of the Authority and by notice in the Gazette, may exempt any public asset from the application of Part XII of this Act.