PUBLIC PROCUREMENT
ARRANGEMENT OF SECTIONS
SECTION
PART I
Preliminary
1. Short title
2. Interpretation
3. Application of Act in public procurement
4. Application of Act in public private partnership
5. Conflict with other laws
PART II
Establishment of Public Procurement Regulatory Authority and Board
6. Continuation of Authority
7. Objectives of Authority
8. Functions of Authority
9. Functions of Authority in professionalisation of procurement personnel
10. Powers of Authority
11. Delegation of functions and powers of Authority
12. Public Procurement Board
13. Membership of Board
14. Tenure of office and conditions of service of members of Board
15. Disqualification, suspension and removal from membership of Board
16. Vacation of office of members of Board
17. Resignation from Board
18. Filling of vacancy in Board
19. Remuneration of members of Board
PART III
Meetings and Proceedings of Board
20. Meetings of Board
21. Disclosure of interest
22. Confidentiality
23. Committees of Board
24. Signification of documents
25. Co-option of advisory panel
PART IV
Chief Executive Officer and Other Employees of Authority
26. Chief Executive Officer
27. Tenure of office of Chief Executive Officer
28. Appointment of Secretary of Board
29. Functions of Secretary of Board
30. Accountability to Authority
31. Conditions of service of Secretary of Board
32. Appointment of employees of Authority
PART V
Financial and Administrative Provisions
33. Funds of Authority
34. Financial year
35. Financial report
36. Annual report
37. Annual and medium term plans
38. Pension and other funds
PART VI
Procuring Entities and Accounting Officers
39. Composition of procuring entities
40. Functions of procuring entities
41. Functions of Accounting Officers
42. Functions of Accounting Officers in contract management
43. Delegation of functions of Accounting Officers
44. Procurement agents or procurement service providers
PART VII
Procurement Oversight Units, Ad Hoc Evaluation Committees, User Departments and Central Agencies
45. Establishment and composition of procurement oversight units
46. Functions of procurement oversight units
47. Establishment and composition of procurement units
48. Functions of procurement units
49. Ad hoc Evaluation Committees
50. User Departments
51. Designation of central agency for common use items
PART VIII
Methods and Selection of Procurement
52. Methods of procurement
53. Selection of procurement method
54. Procurement of highly sensitive works, services or supplies
55. National eProcurement System
PART IX
Standardised Bidding Packages and Bidding Processes
56. Standardised bidding packages and bidding processes
57. National standards specifications
58. Derogation from national standards specifications
59. Legal status of bid package correspondence
60. Electronic procurement
61. Validity period of tenders
62. Medium of communication
PART X
Evaluation and Adjudication Procedure
63. Evaluation of bid packages and adjudication procedure
64. Use of industry standards in evaluation and adjudication
65. Alterations to awarded bids
66. Changes in bidder's circumstances
67. Inclusion of all relevant clauses in bidding packages
68. Retroactive approval
69. Availability of funds
70. End of activity report
71. Annual strategic procurement plans
PART XI
Reservation and Preferential Treatment
72. Economic and social objectives in procurement
73. Empowerment of citizen contractors
74. Process for preferential schemes
75. Certification of eligibility
76. Reserved schemes
77. Procurement reservation and preference schemes
78. Scale of preference
79. Ranking of bids
80. Preference for supplies
81. Primary contractors and subcontractors
PART XII
Accountability and Transparency: Records and Ethics
82. Maintenance of records
83. Access to documentation and databases
84. Obligation to advertise
85. Publicity and media
86. Code of ethical behaviour and declaration of interest
87. Classification of information
88. Rights of review and research
89. Declassification of information
90. Transmission of documents
PART XIII
Registration of Contractors
91. Contractors' Register
92. Registration requirements
93. Registration and pre-qualification
94. Non-registered contractors
95. Classification of contractors
96. Review of registration
97. Renewal of registration
98. De-listing and restoration of contractors
99. Code of conduct of contractors
100. Suspension of contractors
101. Non-registration of suspended contractors
102. Restrictions on contractors with suspended shareholders
103. Procedures for registration
PART XIV
Complaints and Dispute Resolution
104. Lodging of complaints
105. Frivolous or vexatious complaints
106. Timelines for submission of complaints
107. Suspension of procurement process
108. Notification of bidders
109. Decision of Accounting Officer
110. Independent review panel
111. Public officers and employees of public bodies
112. Appeals to Tribunal
113. Exhaustion of dispute resolution processes
PART XV
Public Procurement Tribunal
114. Establishment of Tribunal
115. Jurisdiction of Tribunal
116. Composition of Tribunal
117. Appointment of members of Tribunal
118. Tenure of office of members of Tribunal
119. Disqualification, removal and suspension of members of Tribunal
120. Vacation of office of members of Tribunal
121. Filling of vacancy in Tribunal
122. Meetings of Tribunal
123. Disclosure of interest and confidentiality
124. Committees of Tribunal
125. Co-option of experts by Tribunal
126. Appointment of Registrar of Tribunal
127. Co-operation with Registrar of Tribunal
128. Appointment of employees of Tribunal
129. Funds of Tribunal
130. Financial year of Tribunal
131. Accounts and audit of Tribunal
132. Annual plans
133. Pension and other funds of employees of Tribunal
134. Proceedings of Tribunal
135. Appearance before Tribunal
136. Decision by Tribunal
137. Appeal against decision of Tribunal
138. Notice of intention to appeal or institute proceedings
PART XVI
General Provisions
139. Decision by courts in procurement matters
140. External obligations
141. Procurement for external obligations
142. Derogation from provisions of Act
143. Exemption from provisions of Act
144. Contribution to other entities
145. Discrimination and underpricing
146. Guidelines
147. Offences and penalties
148. Administrative actions
149. Immunity
150. Regulations
151. Repeal of Cap. 42:08
152. Savings and transitional provisions
Act 24, 2021,
S.I. 37, 2022.
An Act to establish the Public Procurement Regulatory Authority; to provide for its functions; to provide for the management of the procurement of works, services and supplies; and for matters incidental thereto and connected therewith.
[Date of Commencement: 14th April, 2021]
PART I
Preliminary (ss 1-5)
This Act may be cited as the Public Procurement Act.
In this Act, unless the context otherwise requires-
"Accounting Officer" means a person who is responsible for the administration and day-to-day management of the affairs of a procuring entity, and any other person, who may be designated as such by the Minister under this Act;
"any combination thereof, however classified" means, in relation to works, services and supplies, a turnkey project or any arrangement in this genre, which may include management, maintenance, testing, commissioning or training;
"Authority" means the Public Procurement Regulatory Authority continued under section 6;
"bid" means a written offer in the form determined by an instruction, in response to an invitation for the procurement of works, services or supplies to submit an offer, including an unsolicited bid;
"bidder" means a contractor who responds to an invitation to bid by submitting an offer in procurement proceedings;
"bidding package" includes an invitation to tender, solicitation documents, a statement of requirements or any other documents inviting bidders to participate in procurement proceedings, including documents inviting potential bidders for pre-qualification;
"Board" means the Public Procurement Regulatory Authority Board established under section 12;
"Chief Executive Officer" means the Chief Executive Officer of the Authority appointed under section 26;
"citizen contractor" means a natural person or an incorporated company wholly owned and controlled by persons who are citizens of Botswana;
"code of conduct" means a code of conduct of contractors provided for under section 99;
"common use items" includes works, services or supplies that are usable by a procuring entity irrespective of type or category, and items as may be prescribed;
"competent authority" means a person, body of persons, organ or agency competent to take action as may be referred to or directed to it by the Authority, or any other person authorised, under this Act;
"consultancy services" means activities of an intellectual and advisory nature that do not lead to a measurable physical output and include design, supervision, training, advisory, auditing, software development and similar services;
"contract" means an agreement between a procuring entity and a contractor resulting from the application of the appropriate and approved procurement procedures and proceedings, and concluded in pursuance of a bid award decision;
"contractor" or "service provider" means a natural person or an incorporated body licensed by a competent authority to undertake works, services, supplies or any combination thereof, however classified;
"Contractors' Register" means a Contractors' Register kept and maintained by the Authority in accordance with Part XIII;
"cooling-off period" means the period which starts from the time of the publication of an award decision to a bidder for a period provided under section 104(1)(a);
"day" means a day of the week other than Saturday, Sunday or a public holiday under the Public Holidays Act (Cap. 03:07);
"Department" means a public entity, extra ministerial body or a subdivision of the central Government, including state-owned entities, local authorities, Land Boards, parastatals, schools and hospitals that derive their regular funding from the Consolidated Fund;
"emergency" means a natural disaster, epidemic, pandemic, riot, war, fire, flood or any other situation that may result in the threat to-
(a) life; or
(b) health, welfare or safety of the public,
which requires immediate action;
"eProcurement" means the process of procurement using electronic medium;
"Evaluation Committee" means an ad hoc committee set up by the Accounting Officer to review and evaluate proposals submitted in response to an invitation to bid and make selection recommendation;
"framework contract" means a contractual arrangement which allows a procuring entity to procure goods, services or works that are needed continuously or repeatedly at an agreed price over an agreed period of time through placement of orders as and when the need arises;
"immediate family member" has the same meaning assigned to it under the Corruption and Economic Crime Act (Cap. 08:05);
"industry standards" means best practices, and include practices and standards which-
(a) are safe and environmentally friendly;
(b) are innovative and increase efficiency;
(c) save time and costs;
(d) relate to materials, processes, methods, designs, equipment, products, services and practices; and
(e) are defined and coded by internationally recognised contractors' associations and professional bodies in the concerned fields;
"integrity agreement" means an agreement between a procuring entity and a contractor which regulates ethical behaviour and integrity during a bidding process and execution of a contract;
"local authority" means a city council, town council, township authority, district council, sub-district council or an administrative authority;
"local contractor" means a contractor whose operation is based in Botswana, irrespective of the contractor's nationality or domicile;
"member" means a member of the Board;
"model structure" means a structure that is provided by the Authority for standardisation to ensure that-
(a) a procuring entity has the appropriate structure according to its capacity and matters it handles; and
(b) proper segregation of duties is in place;
"National Archives and Records Services" has the same meaning assigned to it under the National Archives and Records Services Act (Cap. 59:04);
"National eProcurement System" means the end-to-end electronic procurement system established under section 55;
"pre-qualification" means a screening process designed to ensure that invitations to bid are confined to capable contractors;
"procurement" means the acquisition in the public interest by any means, including purchase, rental, lease, hire-purchase, licence, tenancy, franchise, auction, reverse auction, public private partnership, of any type of works, services or supplies of any combination thereof, however classified, and includes management, maintenance, testing, training and commissioning;
"procurement agent" means a natural person or an incorporated company engaged by a procuring entity to perform or carry out a procurement activity on behalf of the procuring entity in accordance with the provisions of this Act;
"procurement practitioner" means any person or a procurement personnel who provides input in whatsoever form or contribution, in part or in full, or has been or will be involved in the process of public procurement, directly or indirectly;
"procuring entity" means any Ministry or Department duly authorised to engage in public procurement, and includes-
(a) all entities of the central and local Government, and local authority which are involved in public procurement, whether they are located abroad or within Botswana;
(b) every public body, unless specifically exempted from the application of this Act by the Minister, under section 3; and
(c) any other body or entity that is the recipient of public funds and uses the said funds for public procurement purposes;
"public body" means any office, organisation, establishment or body created by or under any enactment or under powers conferred by any enactment; or any organisation, trust, company or body where public moneys are used and includes-
(a) any Ministry or Department;
(b) a local authority;
(c) land board;
(d) statutory body; and
(e) a company registered under the Companies Act (Cap. 42:01) being a company in which the Government or an agency of the Government through holding of shares or otherwise, is in a position to direct the operations of that company;
"public funds" means monetary resources appropriated to a procuring entity through budgetary processes, and includes the Consolidated Fund provided under the Public Finance Management Act, grant, loan and credit put at the disposal of the procuring entity by a local or foreign donor, and revenue generated by such procuring entity;
"Public Oversight Agencies" means the Auditor-General's Office, the Directorate on Corruption and Economic Crime, the Financial Intelligence Agency, Competition and Consumer Protection Authority, the office of the Ombudsman and any other institution charged with the responsibility to oversee the activities of other Departments;
"public private partnership" has the same meaning assigned to it under the Public Finance Management Act;
"registered contractor" means a contractor registered by the Authority in accordance with this Act;
"repealed Act" means the Public Procurement and Asset Disposal Act repealed under section 151;
"retroactive approval" means a formal approval of a bid or invitation to tender made effective or operative as of a date prior to a procurement process;
"reverse auction" means a purchasing technique utilised by a procuring entity to select a successful submission, which involves the presentation by a supplier or contractor of a successively lowered bid during a scheduled period of time and the evaluation of the bids;
"sensitive procurement" means procurement of highly sensitive works, services, supplies and properties, or any combination thereof, however classified, which may require confidentiality or secrecy;
"services" means all services, other than works and supplies, including banking services, insurance coverage services, travel services, cleaning services, and includes consultancy services, management, maintenance and commissioning;
"specifications" means the national standards specifications, and includes-
(a) a generic or functional description of the qualities required of a procurement item;
(b) the relevant industry standards of approaching and executing the assignment in question; and
(c) the appropriate good practice tests that are to be used to verify the specified quality and performance of the procured item before delivery, on delivery, during installation and in the course of operation as applicable and the use of which shall be mandatory in all bidding packages;
"supplies" means goods, raw materials, products, equipment or objects of any kind and description in solid, liquid or gaseous form, and in the form of electricity, as well as services incidental to the provision of such supplies;
"Tender Notice" means any invitation to eligible contractors to submit written offers to provide works, services and supplies, or any combination thereof, however classified;
"Tribunal" means the Public Procurement Tribunal established under section 114;
"unsolicited bid" means a proposal that demonstrates substantial, technical or financial innovation, or meets an unidentified need submitted to a procuring entity for consideration in the absence of an invitation by the procuring entity; and
"works" means any work associated with the construction, reconstruction, demolition, repair or renovation of a building or structure, on the surface or underground, on or under water, and includes the preparation, excavation, erection, assembly, installation, testing and commissioning of any plant, equipment or materials, decoration and finishing, as well as services incidental to or independent of the foregoing works such as drilling, mapping, satellite photography, seismic investigations, similar services, and any combination thereof, however classified, provided pursuant to a contract.
3. Application of Act in public procurement
This Act shall apply to-
(a) a Department;
(b) a public body, parastatal and statutory body, except where exempted by the Minister by Order published in the Gazette;
(c) the procurement of assets acquired through-
(i) purchase,
(ii) rental,
(iii) lease,
(iv) hire-purchase,
(v) licence,
(vi) tenancy, or
(vii) franchise;
(d) the procurement of all works, services, supplies, or any combination thereof, however classified; and
(e) the sensitive procurement of works, services, supplies, or any combination thereof, however classified.
4. Application of Act in public private partnership
(1) This Act shall apply to an approved procurement activity under a public private partnership.
(2) The Minister may prescribe a structural arrangement, procedure and processes relating to a procurement activity under a public private partnership under this Act.
In the event of any conflict or inconsistency between the provisions of this Act and any other law on public procurement, the provisions of this Act shall take precedence.
PART II
Establishment of Public Procurement Regulatory Authority and Board (ss 6-19)
(1) The Public Procurement and Asset Disposal Board established under section 10 of the repealed Act repealed under this Act is hereby continued under the new name of the Public Procurement Regulatory Authority and shall continue as if established under this Act.
(2) The Authority shall be a body corporate capable of suing and being sued in its own name and, subject to the provisions of this Act, of performing such acts as bodies corporate may, by law, perform including to-
(a) acquire and sell such movable and immovable property as may be necessary for the efficient operation of the Authority; and
(b) enter into such contracts as may be required under the seal, and for the efficient operation, of the Authority.
(1) The Authority shall be responsible for the implementation and enforcement of this Act.
(2) Notwithstanding the generality of subsection (1), the Authority shall-
(a) set standards and practices for the public procurement system;
(b) regulate and control the public procurement system;
(c) ensure the application of fair, equitable, competitive, transparent, accountable, efficient, non-discriminatory, honest, value for money and public confidence in procurement standards and practices;
(d) monitor and enforce compliance with this Act and any relevant law by a procuring entity;
(e) monitor the performance of a procuring entity in procurement activity; and
(f) provide and support capacity building of all procuring entities and stakeholders in the procurement system.
(1) Notwithstanding the generality of subsection (2), the Authority shall-
(a) monitor, assess, review and report on the performance of the public procurement system to the Minister and advise on desirable changes;
(b) issue standardised bidding documents to a procuring entity;
(c) issue a model structure for a procuring entity taking into account the separation of duties, efficiency, transparency, good corporate governance, and any other principle of public procurement;
(d) conduct periodic inspections of the records and proceedings of a procuring entity to ensure compliance with this Act;
(e) institute periodically, in respect of any procurement-
(i) a procurement audit during a tender process,
(ii) a contract audit in the course of execution of an awarded tender,
(iii) a performance audit after the completion of a contract, and
(iv) an investigation at any stage of a procurement process;
(f) develop and maintain a system for the publication of annual performance plans, data on public procurement opportunities, awards and any other information of public interest as may be determined by the Authority;
(g) advise the Government and any entity that falls within the scope of this Act on the procurement principles and practices;
(h) register, monitor and discipline contractors, and keep and maintain an up-to-date Contractors' Register;
(i) undertake research and conduct surveys, nationally and internationally, on procurement matters;
(j) issue a code of conduct, guidelines, standards, directives, procedures, instructions and manuals for the implementation of this Act;
(k) promote the training and professional development of any person engaged in public procurement in accordance with this Act, including contractors, to ensure adherence to ethical standards;
(l) ensure the implementation of a preference and reservation scheme by a procuring entity in respect of a procurement matter that falls within the scope of this Act;
(m) determine the policies relating to, and terms and conditions of service of the employees of the Authority;
(n) determine the financial arrangements and any ancillary management issue relating to the Authority;
(o) issue administrative sanctions and enforcement procedures, as may be prescribed, to ensure compliance with the provisions of this Act; and
(p) carry out any other functions as are conferred by the law.
(2) The Authority shall periodically, and in consultation with a procuring entity, contractor and Public Oversight Agencies, make recommendations to the Minister on any policy matter the Government may adopt involving public procurement.
9. Functions of Authority in professionalisation of procurement personnel
(1) The Authority shall establish and setup an appropriate structure to regulate and register procurement personnel, and oversee any other matter relating to the professionalisation of procurement personnel.
(2) Notwithstanding the generality of subsection (1), the Authority shall-
(a) establish, develop and implement a public procurement professional training program;
(b) establish, monitor and publish standards for a procurement professional;
(c) undertake accreditation and registration of a procurement practitioner;
(d) establish requirements for, and monitoring of, continuous professional education or development programs;
(e) establish, publish and review a code of professional conduct and ethics for public procurement practitioners which shall be consistent with international best practice;
(f) determine practical training requirements for the purpose of registration of a procurement practitioner;
(g) inquire into any professional misconduct of any procurement practitioner, either on its own initiative or at the request of any person for violation or breach of a code of professional conduct and ethics, rules and standards;
(h) determine the appropriate entry category and qualification requirement for registration as a procurement practitioner;
(i) debar, de-register, take disciplinary measures or suspend a procurement practitioner for a breach of code of professional conduct and ethics; and
(j) perform such other functions as may be necessary for the professionalisation of procurement personnel under this Act.
(3) The Authority may delegate its functions in professionalisation under this section to any self-regulatory body that it may determine.
(1) The Authority shall, in the exercise of its functions in accordance with sections 8 and 9, have the power to-
(a) require any information, document, record or report in respect of any aspect of a public procurement process where a breach, wrongdoing, mismanagement or collusion has been alleged, reported or proven against any procuring entity or bidder, or against any entity outside of Government which has been a beneficiary of a Government contribution for a procurement activity;
(b) summon a witness, call for the production of books of accounts, plans, documents and examine a witness and any party concerned under oath;
(c) commission or undertake an investigation; and
(d) request for any professional or technical assistance from any appropriate body or person in Botswana or elsewhere.
(2) The Authority shall not incur any liability towards a procuring entity or any other entity or person interested in a tender under review or investigation under this section.
(3) Notwithstanding anything contrary provided for in any other written law, the Authority may, after conducting an investigation referred to under subsection (1)(c) and it is reasonably satisfied that there is a contravention of any provision of this Act, take any remedial action as may be prescribed.
(4) The Authority shall in its Annual Performance Evaluation Report include-
(a) the complaints investigated and its findings;
(b) its recommendations on the corrective measures to be taken in each case;
(c) the response and action taken by the-
(i) respective competent authority,
(ii) procuring entity, and
(iii) Public Oversight Agencies;
(d) any other remedial measures taken; and
(e) the performance of the Authority in relation to its other functions under this Act.
11. Delegation of functions and powers of Authority
(1) The Authority may, in writing, delegate any of its functions or powers to a-
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