Malawi
Public Procurement Act
Chapter 37:03
- Assented to on 13 June 2003
- Commenced on 1 August 2003
- [This is the version of this document at 31 December 2014.]
- [Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]
Part I – Preliminary
1. Short title
This Act may be cited as the Public Procurement Act.2. Interpretation
In this Act, unless the context otherwise requires—“bidder” means, any participant or potential participant in procurement proceedings;“bidding documents” means the tender solicitation documents or any other documents for solicitation of offers, proposals or quotations;“cadre of procurement professionals” means the body of procurement professionals with a defined career path and skills requirements responsible for conducting public procurement;“corrupt practice” means the offering, giving, receiving or soliciting of anything of value to influence the action of a public official in the procurement process or in contract execution;“Director” means the Director of Public Procurement appointed under section 6;“fraudulent practice” means a misrepresentation of facts in order to influence a procurement process or the execution of a contract, and includes collusive practices among bidders, whether prior to or after bid submission, designed to establish bid prices at artificial, non-competitive levels and to deprive the procuring entity of the benefits of free and open competition;“goods” means objects of every kind and description, including raw materials, products and equipment, and objects in solid, liquid or gaseous form, and electricity, as well as services incidental to the supply of the goods if the value of those incidental services does not exceed the value, of the goods themselves;“procurement” means the acquisition by any means of goods, works or services;“procurement contract” means a contract between the procuring entity and a supplier resulting from procurement “proceedings”;“procuring entity” means any Ministry, department, agency or organ, of the Government or statutory body or other unit, or any subdivision thereof, engaging in procurement;“procurement professional” means a member of the cadre of procurement professionals;“Public Appointments Committee” means the Public Appointments Committee of the National Assembly established under section 56 (7) of the Constitution;“public funds” means any monetary resources appropriated to procuring entities through budgetary processes, aid grants and credits put at the disposal of procuring entities by foreign donors, or revenues of procuring entities;“services” means any object of procurement other than goods or works;“supplier” means a physical or judicial person that provides supply of goods, contracting of works, or consultants or other services;“works” means all work associated with the construction, rehabilitation, demolition, maintenance or renovation of a building or structure, including site preparation, excavation, erection, building, installation of equipment or materials, decoration and finishing, as well as services incidental to construction such as drilling, mapping, satellite photography, seismic investigation and similar services provided pursuant to a procurement contract, if the value of those services does not exceed the value of the construction itself.3. Application
Part II – Establishment of the office of Director of Public Procurement
4. Establishment of office of Director
5. Functions of the Director
6. Appointment of Director and Deputy Director
7. Appointment of other officers and staff
There shall be appointed in the public service, on terms and conditions approved by the President, other officers and staff subordinate to the Director as may be required for the proper performance of the functions of the Director, but the appointment of other officers and staff under this section shall not require confirmation of the Public Appointments Committee.Part III – Internal Procurement Committees and specialized procurement units
8. Establishment of Internal Procurement Committees
9. Composition of Internal Procurement Committees
10. Establishment of specialized procurement units
Heads of procurement agencies and heads of other public departments and organizations may establish specialized procurement units or, in the case of procurement entities with low levels of procurement, shared specialized procurement units, and assign to such units authority to conduct procurement activities in accordance with this Act and the Regulations.11. Staffing of specialized procurement units
The specialized procurement units established pursuant to section 10 shall be staffed with personnel trained in public procurement, and shall include at least two specialists whose professional qualifications have been certified by the Director to meet the requirements that shall have been issued by the Director.12. Career development and management of procurement officers
The Director shall develop and recommend to the Minister a career development and management programme, and a system for selection, appointment and termination of appointment for the cadre of procurement professionals.Part IV – General procurement provisions
13. Qualifications of bidders
14. Eligibility
In order to be eligible to be awarded a procurement contract, a bidder must be registered, depending upon the nature of the contract, with the Registrar of Companies, or with the National Construction Industry Council of Malawi, or such other entity as may be prescribed by regulations, but the sole absence of an application for entry in the registry or classification system is not ground for exclusion of a bidder from participation in procurement proceedings.15. Rules concerning description of goods, works and services
In the preparation of bidding and pre-qualification documents, any specifications, plans, drawings and designs goods, setting forth the technical or quality characteristics of the goods, construction or services to be procured, and requirements concerning testing and test methods, packaging, marking, labeling, or conformity certification, symbols and terminology, or description of services, and any contract terms, shall be drawn up in an objective, and performance and function based manner, so as to maximize competition and avoid creating obstacles to participation by bidders in the procurement proceedings, while ensuring that applicable national and international standards and the requisite quality levels are met.16. Form of communication
Subject to other provisions of this Act, all documents, notifications, decisions and other communications referred to in this Act and in the Regulations required to be submitted by the procuring entity to a bidder or by a bidder to the procuring entity shall be in writing:Provided that of other forms of communication may be used if a record of the content of the communications is preserved, and all other requirements set forth in this Act and in the Regulations are met.17. Use of modem information and communications technology
The Director may devise a strategy for, and to promote, the application of modem information and technology communications technology to public procurement.18. Conduct of public officials and bidders
19. Disclosure of interest
20. Debarment of bidders and suppliers
The Director may, after reasonable notice to the bidder or supplier, and after providing reasonable opportunity for that bidder or supplier to be heard and consultation with the affected procuring entities, exclude a bidder or supplier from participation in procurement for the misconduct prescribed in this Act and the Regulations, in accordance with procedures set out in the Regulations.21. Procurement planning
Procuring entities shall plan procurement with a view to achieving maximum value for public expenditures and the other objectives set forth in this Act, and in accordance with the applicable budgetary procedures.22. Contract administration
23. Rejection of all bids; termination for convenience, etc.
A procuring entity may—24. Debriefing of unsuccessful bidders
A procuring entity shall, upon request of an unsuccessful bidder, communicate to the bidder the grounds for the rejection of its application to pre-qualify, or of its bid.25. Entry into force of procurement contract
The manner of entry into force of procurement contract shall be indicated in the bidding documents.26. Public notice of procurement contract awards
A procuring entity shall promptly publish notice of all procurement contract awards when the price of the award exceeds the level set by regulation, and the notice, which shall indicate the contract price and the name and address of the successful bidder, shall be published in the Gazette.27. Record of procurement proceedings
28. Participation by small- and medium-sized enterprises
29. Supply management
Part V – Methods of procurement and their conditions for use
30. Choice of procurement method
Part VI – Main principles and procedures for methods of procurement
31. Tendering proceedings
32. Restricted tendering
33. Two-stage tendering
34. Request for proposals for services
35. Request for quotations
36. Single-source procurement
Part VII – Review
37. Right to review
38. Review procedures
Part VIII – Auditing
39. Regular auditing of procurement activities
Procurement activities shall be subject to regular auditing by the Auditor General to ensure that public funds are expended for their intended purpose, and with a view to maximizing value received by the public purchaser, ensuring that proper and accountable systems are in place and adhered to, and identifying any weaknesses in procurement.40. Cooperation with control bodies
All public entities, officials, and other participants involved in public procurement shall, in accordance with this Act and any other written law, provide full cooperation and disclosure to the Director, the Auditor General, and other authorities exercising monitoring and oversight over public procurement pursuant to the laws of Malawi.Part IX – Miscellaneous provisions
41. Annual reports
42. Exemptions from personal liability
No person shall, in his personal capacity, be liable in civil or criminal proceedings in respect of any act or omission done in good faith in the performance of duties or functions under this Act.43. Regulations
The Minister may, on the recommendation of the Director, make regulations for the carrying into effect of the provisions of this Act.History of this document
31 December 2014 this version
Consolidation
01 August 2003
Commenced
13 June 2003
Assented to
Subsidiary legislation
Title | Numbered title |
---|---|
Public Procurement Regulations, 2020 | Government Notice 24 of 2020 |
Public Procurement and Disposal of Public Assets (Participation by Micro, Small and Medium Enterprises) Order, 2020 | Government Notice 96 of 2020 |