Public Procurement and Disposal of Public Assets Act
- Published in Malawi Gazette on 27 August 2017
- Assented to on 18 August 2017
- Commenced on 21 December 2017
- [This is the version of this document at 31 December 2017.]
- [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 titleThis Act may be cited as the Public Procurement and Disposal of Public Assets Act.
2. InterpretationIn this Act, unless the context otherwise requires—“Authority” means the Public Procurement and Disposal of Assets Authority established under section 4;“award” means the granting of a contract by a procuring and disposing entity to a supplier for purposes of entering into a procurement contract;“bid” means an offer to provide goods, works and services submitted by a bidder in response to an invitation from a procuring and disposing entity and includes a tender, proposal, quotation and, where applicable, an application to pre qualify;“bidder” means any participant who has expressed interest in procurement proceedings by submitting a bid;“bidding document” means a tender solicitation document or any other document for solicitation of offers, proposals or quotations;“bid notice” means any advertisement by which eligible bidders are invited to submit written offers to provide or acquire works, services and goods or any combination of them in case of procurement and disposal respectively;“bid security” means a security bond required to ensure that a bid will remain valid during the period stated in the bidding document;“bid securing declaration” means a declaration specified under the regulations;“chairperson” means the chairperson of the Authority;“close relative” means a spouse, child, sibling or parent or guardian;“Controlling Officer” means the head or principal person who is in charge of procuring and disposing entity;“coercive practices” mean practices intended at harming or threatening to harm, directly or indirectly, a person, or a person’s asset, to influence that person’s participation in a procurement or disposal proceeding or to effect the execution of a procurement contract;“collusive practices” mean a scheme or arrangement between two or more bidders, with or without the knowledge of the procuring and disposing entity, designed to establish bid prices at artificial or non-competitive levels;“consultant” means a person who is under a procurement contract to provide consultancy services to a procuring and disposing entity;“consultancy services” means services of an intellectual or advisory nature;“contract” means a legally binding agreement between two or more parties formed by the mutual consent of the parties;“contractor” means a natural or legal person who is registered with a relevant authority to perform construction works;“corrupt practice” has the meaning ascribed to the term by the Corrupt Practices Act;[Cap. 7:04]“Director General” means the Director General appointed under section 10;“disposal” means the divestiture of public assets, including intellectual and proprietary rights and goodwill, and any other rights of a procuring and disposing entity by any means of sale, auction or any combination of these;“disposal process” means the successive stages in the disposal cycle;“domestic bidder” means any bidder whose principal place of business is within Malaŵi;“domestic supplier” means any supplier whose principal place of business is within Malaŵi;“donor organization” means an organization which provides, or joins in providing, grants, credits or loans to the Government or its agencies;“due diligence” means the assessment of a bidder’s or supplier’s technical, financial and management capabilities and the bidder’s or supplier’s governance record to effectively execute a procurement contract;“emergency” means a situation which poses an imminent threat to the physical safety of a population or damage to property;“e-procurement” means the process of procurement using the internet or other information and communication technologies;“foreign bidder” means a bidder other than a domestic or regional bidder;“foreign supplier” means a supplier other than a domestic or regional supplier;“framework agreement” means an agreement between a procuring and a disposing entity and a supplier and a contractor through which a supplier or contractor undertakes to supply goods, works or services on indefinite quantity basis at an agreed unit price for an agreed period of time;“fraudulent practice” means a misrepresentation of facts in order to influence a procurement or disposal process or the execution of a contract;“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;“information” includes written, visual, oral and electronic information;“Internal Procurement and Disposal Committee” means a committee constituted under section 26;“joint venture” means an association of two or more bidders for the purposes of participating in and carrying out a procurement contract;“local authority” has the meaning assigned to it in the Local Government Act;[Cap. 22:01]“local enterprise” means supplier, contractor or consulting firm registered and operating in Malaŵi and whose shareholding is held in majority by Malaŵian nationals;“lowest evaluated bidder” means a bidder ranked as first, following the application of the specified evaluation methodology and criteria;“misprocurement” means a procurement that has not followed the laid down procedures and guidelines;“national supplier” means a supplier registered and operating in Malaŵi;“non-consulting services” means any object of procurement other than goods, works and consulting services;“no objection” means permission to proceed with the intention for contract award;“officer” means a person who is assigned to, or employed by, the Authority;“post-qualification evaluation” means the conduct of due diligence to determine whether the bidder is qualified to perform the procurement contract effectively;“pre-qualification documents” means documents issued by the procuring and disposing entity that set out the terms and conditions of the pre-qualification proceedings;“procurement contract” means an agreement between a procuring and disposing entity and a bidder, supplier, or consultant resulting from the procurement proceedings and includes a framework agreement or an agreement to dispose public assets, if applicable in the context;“procurement professional” means a member of the cadre of procurement professionals;“Procurement and Disposal Unit” means a division or section in each procuring and disposing entity responsible for the execution of the procurement and disposal function;“procuring and disposing entity” means a Government ministry, department, agency, any other public body or any sub division thereof engaging in procurement or disposal of public assets;“public interest” means something that is to the advantage, direct or indirect, of the people of Malaŵi;“public procurement” means acquisition by a procuring and disposing entity, of goods, works, services or any combination thereof, funded in whole or in part by public funds;“public asset” means any property, tangible or intangible, owned by the Government or by a procuring and disposing entity, including physical property, shares, proprietary rights and land;"public body” means any organ or agency of the Government and includes—(a)a statutory body;(b)local authorities; and(c)such other bodies as may be prescribed;“public official” means—(a)an officer; or(b)a public officer or other person employed by a public body;“public funds” means any monetary resources appropriated to procuring and disposing entities through budgetary processes, grants and credits, put at the disposal of procuring and disposing entities by donor organizations or revenues of procuring and disposal entities;“record” means any recorded information, in any format, including an electronic format;“regional bidder” means a bidder from countries in the region or regional block as prescribed in the regulations;“regional preference” means the margin of preference applicable to bidders and suppliers from the countries in the region or regional block, as stipulated in the bidding document;“responsive” means satisfying the minimum requirements of a bidding process as stipulated in the bidding document;“reverse auction” means an online real-time sourcing technique utilized by a procuring and disposing entity to select the successful bid, which involves presentation by suppliers or contractors of successively lowered bids during a scheduled period of time and automated evaluation of the bids;“Review Committee” means the independent Review Committee constituted under Part IX;“socio-economic policies” means environmental, social, economic and other policies of the Government which a procuring and disposing entity is required to take into account in the procurement and disposal proceedings;“small and medium enterprises” means an enterprise including its affiliates that is independently owned and operated, not dominant in the field of operation in which it is bidding on Government contracts and qualified as such under the criteria and size standards in the relevant instruments of the Ministry responsible for industry and trade or the National Construction Industry Council of Malaŵi;“statutory body” has the meaning assigned to it in the Public Audit Act;[Cap. 37:01]“supplier” means a natural, or legal person, who has entered into a procurement contract with a procuring and disposing entity;“undue influence” means pressure or influence exerted on a public officer to make a decision in favour of the person exerting such pressure or influence or anyone connected to him;“user department” means any department, division, branch or section of the procuring and disposing entity, including any project unit working under the authority of the procuring and disposing entity, which initiates procurement and disposal requirements and is the user of the requirements;“vice-chairperson” means the person appointed as vice-chairperson of the Authority; and“works” means works associated with the construction, re-construction, demolition, repair or renovation of a building, road, structure or works, such as 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 investigations, and related services provided pursuant to a procurement contract, if the value of those services does not exceed that of the works themselves.
3. Application of this Act
Part II – The Public Procurement and Disposal of Assets Authority
4. Establishment of the Public Procurement and Disposal of Assets AuthorityThere is hereby established the Public Procurement and Disposal of Assets Authority (in this Act otherwise referred to as the “Authority”), which shall be—
5. Functions of the Authority
6. Powers of the Authority
7. Membership of the Authority
8. Meetings of Authority
9. Committees of the Authority
10. Director General
11. Tenure of office of the Director GeneralThe Director General shall be appointed to a term of office of four years, and may be re-appointed for a further term.
12. Removal of the Director General
13. Deputy Director General
14. Acting Director General
15. Other staff of the AuthorityThe Director General shall appoint other members of staff as may be required for the performance of the functions of the Authority on such terms and conditions determined by the Authority.
16. Funds of the AuthorityThe operational and financial costs of the Authority shall be provided through—
17. Borrowing by the AuthoritySubject to the Public Finance Management Act, the Authority may borrow such amounts of money as it may require for the performance of its functions under this Act.[Cap. 37:02]
18. Advances to the AuthorityWhere in any financial year the income of the Authority, together with any surplus income brought forward from a previous year, is insufficient to meet the actual or estimated liabilities of the Authority, the Minister may make advances to the Authority out of moneys appropriated for that purpose by Parliament.
19. Books of account
20. Financial year of the Authority
21. Audit of accountsThe Authority shall be audited in accordance with the Public Audit Act.[Cap. 37:01]
22. Disclosure of interest
23. Post engagement restrictions
24. Immunity of members and employees of the AuthorityA member or every member of the Authority or employee shall not, 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 his duties or functions under this Act.
Part III – Responsibility of Controlling Officers, Internal Procurement and Disposal Committees, Procurement and Disposal Units and ad hoc Evaluation Teams
25. Responsibility of a Controlling Officer
26. Establishment of Internal Procurement and Disposal Committees
27. Composition of Internal Procurement and Disposal Committees
28. Ad hoc evaluation team
29. Procurement and Disposal Unit
Part IV – Principles procurement and disposal of assets
30. Principles of public procurementAll public procurement proceedings shall be conducted in a manner which promotes transparency, accountability, non-discrimination, fairness, open competition, anonymity, economy, efficiency and responsiveness to modern information and communications technology.
31. Principles of disposal of assets
32. Records of procurement and disposal proceedings
33. Mode of communicationAll communication, including electronic communication, between a procuring and disposing entity and a bidder, supplier or contractor shall be in English and in writing.
35. Limitation on contracts with employeesA procuring and disposing entity shall not enter into a procurement or disposal contract with its employee, or any close relative of any employee.
36. Participation by micro, small and medium enterprises
Part V – Procurement and disposal methods
37. Methods of procurement
38 . Disposal of assets
Part VI – Procurement and disposal planning and proceedings
39. Planning of procurement and disposal activities
40. Publication of invitation to bid
41. Issuance of bidding document
42. Submission of bids
43. Bid opening
44. Bid evaluation
45. Use of standard bidding documents
46. Cancellation of procurement proceedingsA procuring and disposing entity may—
48. Intention to award a contractThe procuring and disposing entity shall publish the intention to award contract in two widely circulated newspapers and on the Authority’s website for a period of fourteen days for any procurement contract above a threshold to be set by the Director General before signing the contract.
49. Procurement contract
50. Amendment of a signed procurement contract
51. Contract management
Part VII – Suppliers and bidders
52. Eligibility criteria of suppliersIn order to be eligible to be awarded a procurement contract, a bidder shall—
53. Qualification of bidders
54. Supplier databases or lists
55. Conduct of bidders and suppliers
56. Debarment of suppliers and contractors
Part VIII – Procurement integrity
57. Conduct of public officials
58. Codes of conduct for public officials and suppliersThe Director General may promulgate codes of conduct to guide the behaviour of public officials and bidders and suppliers involved in public procurement or disposal processes.
Part IX – Administrative review and appeal
59. Right to review
60. Review procedures
Part X – Miscellaneous
61. Framework agreements
62. Oath by members and employees of the Authority
65. Repeal and savings
66. Transitional provisions
History of this document
31 December 2017 this version
21 December 2017
27 August 2017
Published in Malawi Gazette
18 August 2017
|Public Procurement and Disposal of Assets (Participation by Micro, Small and Medium Enterprises) (Fees) Order, 2021||Government Notice 20 of 2021|
|Public Procurement and Disposal of Public Assets (Participation by Micro. Smali and Medium Enterprises) (Amendment) Order, 2021||Government Notice 3 of 2021|