CHAPTER 42:08
PUBLIC PROCUREMENT AND ASSET DISPOSAL
ARRANGEMENT OF SECTIONS
SECTION
PART I
Preliminary
1. Short title
2. Interpretation
PART II
Scope of the Act
3. Application
4. External obligations
5. Procurement for external obligations
6. Derogation
7. Fair treatment
8. Contribution to other entities
9. Discrimination and underpricing
PART III
Establishment, Constitution and Membership of the Board
10. Establishment of the Board
11. Composition of the Board
12. Appointment to the Board
13. Conditions of service
14. Tenure of Board members
15. Termination of membership to the Board
16. Resignation
17. Filling of vacancies of the Board
PART IV
Meetings and Proceedings of the Board
18. Meetings of the Board
19. Signification of documents
20. Method of work of the Board
21. Appointment of Secretary to the Board
22. Functions of the Secretary
23. Accountability to the Board
24. Conditions of service of Secretary
25. Co-option of advisory personnel
PART V
Functions and Powers of the Board
26. Functions and powers of the Board
27. Compliance with the Act
28. Advise stakeholders
29. Standardised bidding package
30. National standards specification
31. Derogation by Board
32. Approval of specific instructions
33. Revision of bid packages
34. Legal status of bid packages correspondence
35. Evaluation procedures
36. Evaluation and adjudication
37. Power to adjudicate
38. References
39. Industry standards
40. Precedent to be followed
41. Alterations to awarded bids
42. Changes in bidder's circumstances
43. Inclusion of all relevant clauses in bidding packages
44. Retroactive approval
45. Availability of funds
46. End of activity report
47. Resiling from agreements
48. Recommendation of systemic improvements
49. Management of contractors registration system
50. Establishment of committees and delegation of power
51. Operational modalities of sub-committees
52. Obtaining of information
53. Redressing complaints
54. Dispute resolution
55. Methods of procurement
56. Electronic procurement
57. Medium of communication
PART VI
Financial and Administrative Provisions
58. Financing of the Board
59. Technology, data-bases and manpower
60. Annual and medium term plans
PART VII
Devolution of Public Procurement and Asset Disposal Management
61. Establishment of Ministerial Committees
62. Responsibilities of Ministerial procurement and Asset disposal Committees
63. Special Procurement Committee
64. District Administration Committees
65. Financial ceilings
PART VIII
Reserved and Preferential Treatment
66. Economic and social objectives and procurement
67. Empowerment of citizen contractors
68. Process for preferential schemes
69. Certification of eligibility
70. Eligibility for preference
71. Reserved schemes
72. Procurement preferences and reservation schemes
73. Scale of preference
74. Ranking of bids
75. Preference for supplies
76. Prime contractor and subcontractor
PART IX
Accountability and Transparency: Audit and Ethics
77. Independent auditor
78. Liability of auditor
79. Audit by the Auditor General
80. Audit recommendation and the Board
81. Availability and comments on report
82. Co-operation with the auditors
83. Facilitating investigations
84. Maintenance of records
85. Access to documentation and data bases
86. Obligation to advertise
87. Publicity and the media
88. Disclosure of interest by members of the Board
89. Confidentiality obligations
90. Code of ethics and declaration of business interests
91. Classification of information
92. Rights of review and research
93. Declassification of information
94. Transmission of documents
PART X
Establishment of the Independent Complaints Review Committee
95. Independent Committee
96. Composition
97. Appointment
98. Levels and institutional representation
99. Conditions of service of Committee
100. Secretary of Independent Committee
101. Co-option of experts
102. Modalities of operation
103. Scope of responsibilities
104. Requirements in respect of grievances
105. Exemption
106. Meeting of costs
107. Imposition of fines
108. Award of costs
109. Co-operation with the Secretary
PART XI
Advisory Committee on Public Procurement and Asset Disposal
110. Establishment of Advisory Committee
111. Membership of Advisory Committee
112. Meetings and functions of Advisory Committee
113. Appointment to Advisory Committee
114. Conditions of service of Advisory Committee
115. Method of work of Advisory Committee
PART XII
Registration of Contractors
116. Register of contractors
117. Requirements to be registered
118. Domicile and registration
119. Registration and pre-qualification
120. Non-eligibility for non-registered contractors
121. Classification of contractors
122. Review of register
123. Code of conduct of contractors
124. Suspension and de-listing from the register
125. Non-registration of suspended contractors
126. Restriction on defaulting contractor
127. Procedures and regulations
PART XIII
General Provisions
128. Offences
129. Immunities
130. Regulations
131. Repeal and savings
132. Transitional period
Act 12, 2008,
S.I. 72, 2008.
An Act to establish the Public Procurement and Asset Disposal Board and its committees and provide for the procurement of works, supplies and services, for the disposal of public assets and related matters.
[Date of Commencement: 2nd July, 2002]
PART I
Preliminary (ss 1-2)
This Act may be cited as the Public Procurement and Asset Disposal Act.
In this Act, unless the context otherwise requires—
"Advisory Committee" means the Advisory Committee on Public Procurement and Asset Disposal established under section 110;
"any combination thereof, however classified" means turnkey projects, build own operate projects, build operate and transfer projects or any arrangement following in this genre, which may also include management, maintenance, testing, commissioning or training;
"bid" means tender and vice versa or an invitation by—
(a) a procuring entity for a provider (works, supplies or services); or
(b) a disposing entity for interested parties,
to submit a competitive offer in relation to a public solicitation for a specific activity which shall include design assignments;
"bidding document" means a standard bidding package, which shall include, in relation to—
(a) works—
(i) invitation to bid;
(ii) specific instructions to bidders;
(iii) form of bid;
(iv) form of contract;
(v) conditions of contract (general and particular);
(vi) specifications and design drawings,
(vii) bills of quantities or equivalent documents approved by the Board;
(viii) schedule of commencement, delivery, completion, etc.; and
(ix) securities; or
(b) services—
(i) letter of invitation;
(ii) instructions or briefs to bidders;
(iii) description of services to be supplied;
(iv) terms of reference;
(v) technical proposal;
(vi) financial proposal (where applicable);
(vii) schedules; or
(viii) standard forms of contracts; and
(c) supplies—
(i) letter of invitation;
(ii) instructions to suppliers;
(iii) description of supplies;
(iv) technical specifications;
(v) financial proposal (where applicable);
(vi) schedules relating to delivery, payment, etc., or
(vii) standard forms of contracts; and
(d) in respect of paragraphs (a), (b) and (c) above, any other relevant forms, documents, correspondences and clarification.
"Board" means the Public Procurement and Asset Disposal Board established under section 10;
"Citizen Contractor" means a natural person or an incorporated company wholly owned and controlled by persons who are citizens of Botswana;
"Committee" means a Committee of the Public Procurement and Public Asset Disposal Board, established by a decision of the Board, and delegated specific functions and powers by the Board in respect of public procurement or the disposal of public assets under the Act;
"contract" means an agreement between a procuring entity or a disposing entity and a contractor resulting from the application of the appropriate and approved procurement or disposal procedures and proceedings, and shall be concluded in pursuance of a bid award decision by the Board or one of its Committees;
"Contractor" or "provider" are used interchangeably and mean a natural person or an incorporated body licensed by the competent authority to undertake works, services, supplies, or any combination thereof, however classified;
"Department" means a public entity, an extra ministerial body or a subdivision of the central Government, including schools and hospitals that derive their regular funding from the Consolidated Fund;
"disposal" means the divestiture of public assets, including intellectual property rights and goodwill, and any other rights of the State, by any means, including sale, rental, lease, licences, tenancies, franchises, auction or any combination thereof, however classified;
"disposing entity" means any Ministry or department duly authorised to engage in public procurement;
[12 of 2008, s. 2.]
"District Committees" means the District Administration Public Procurement and Asset Disposal Committees established under section 64;
"Executive Chairperson" means the Executive Chairperson of the Public Procurement and Asset Disposal Board appointed under section 12(1);
"Independent Committee" means the Independent Complaints Review Committee established under section 95;
"industry standards" means best practices which shall include practices and standards which—
(a) are safe and environmentally friendly;
(b) are innovative and increase efficiencies;
(c) save time and costs;
(d) relate to materials, processes, methods, designs, equipment, products, services and practices; and
(e) are as defined and coded by internationally recognised contractors' associations and professional bodies in the concerned fields;
"local contractor" means a contractor whose operation is based in Botswana irrespective of the contractor's nationality or domicile;
"Minister" means the Minister for Finance;
"Ministerial Committee" means the Ministerial Public Procurement and Asset Disposal Committee established by the Public Procurement and Asset Disposal Board at the ministerial level and vested with authority to conduct public procurement and the disposal of public assets on behalf of its departments, consistent with the procedures set out in this Act;
"pre-qualification" means a screening process designed to ensure that invitations to bid are confined to capable firms;
"procurement" means the acquisition in the public interest by any means, including by purchase, rental, lease, hire-purchase, licences, tenancies, franchises, etc., of any type of works, services or supplies or any combination thereof, however classified, and shall include management, maintenance and commissioning;
"procuring entity" means any Ministry or department duly authorised to engage in public procurement;
"Public Oversight Agencies" means the Attorney-General's Chambers, the Auditor General's Office, the Directorate on Corruption and Economic Crime, the Office of the Ombudsman and any other institution charged with a responsibility to oversee the activities of other Government departments;
"Registered Contractor" means a contractor registered with the Public Procurement and Asset Disposal Board in terms of this Act and any regulations made thereunder;
"services" means all services, other than works and supplies, including banking services, insurance coverage, travel services, cleaning services, etc., and includes consultancy services;
"specifications" means 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; 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 and 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 provided pursuant to a procurement contract.
PART II
Scope of the Act (ss 3-9)
The provisions of this Act shall apply to—
(a) all entities of the central Government which are involved in public procurement or the disposal of public assets, whether they are located abroad or within Botswana;
(aa) all land boards;
[12 of 2008, s. 3.]
(ab) all parastatals, statutory organisations and local authorities, in accordance with the provisions of section 8, except where exempted by the Minister by notice published in the Gazette;
[12 of 2008, s. 3.]
(b) the procurement or disposal of all assets acquired by any means, including—
(i) purchase;
(ii) rental;
(iii) lease;
(iv) hire-purchase;
(v) licences;
(vi) tenancies;
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