THE Zambia Public Procurement of Authority (ZPPA) has cancelled the
fertiliser tender which was recently awarded by the Ministry of Agriculture after the process was flouted.
Confirming the cancellation of tender, ZPPA director general Idah Chella said the action by her office was in line with regulation 249
following a realisation that the procuring entity, the Ministry of Agriculture, decided to include local bidders or suppliers on a bid
that was restricted to citizen bidders with seeking a deviation from ZPPA.
“According to regulation 249 under the public procurement regulations, we received two appeals from the public and after we received the appeal, we reviewed the tender and found that there were irregularities in the sense that the tender was under Open National
Bidding. And Open National Bidding is restricted to citizens only.
So if under section 39(2), it says participation in Open National
Building shall be limited to citizens bidders and in the absence of successive citizen bidder, to local bidders,” Chella explained.
“Under 39(3), a local bidder awarded a procurement contract in accordance with subsection (2) shall partner with a citizen supplier that is if there is no citizen bidder. So in this case, the ministry floated a tender under Open National Bidding and going by our Act under Section 39(1) this was only limited to citizen bidders but in their case, they included local bidders.”
She said following publication of successful bidders and complaint window, ZPPA reviewed the process.
“Prior to the closing of the window period as you are aware for open bidding, we have a 10-day notification period in which the bidders are told that the procuring entity intends to award to this bidder. So during that time we received two appeals and ZPPA under section 100 is supposed to review every procurement as long as it is within 10 days
of the notification of the bidders,” Chella explained.
“So we received two bids and after we reviewed their complaints and
concluded we found that there was an irregularity in the sense that the
tender allowed both the citizen bidders and local bidders without seeking a deviation from the ZPPA in accordance with section 79.
That procedure was not done.”
She said the regulations in procurement requires the procuring entity to seek deviation in a case of alteration in the process, which
the ministry failed to comply with.
“When you go to the Act, it refers to a citizen bidder as somebody who is a Zambian citizen and the shareholding of that entity is
Zambian.
According the Act citizen has got a meaning assigned to the word as assigned in the Constitution. Citizen bidder or supplier means, in the case of an individual, a bidder or supplier who is a citizen. So that is key.
A firm or company whether corporate or
incorporate, a firm or company wholly owned by a citizen and body of persons wholly comprising of citizens. Here it means, even the shareholding has to be citizens,” Chella said. “Then local bidder is a company that may be incorporated in Zambia but could have maybe a citizen and then foreign bidders as well or a combination.
In the Act, a local bidder or supplier means a non-citizen bidder or supplier who is registered to undertake business activities in the republic in accordance with the relevant written
law.”
She said it was up to the procuring entity to decide whether to do fresh bidding or not since the fertiliser was still required.
“We found out that they had combined both local and citizen bidders without seeking a deviation. So that is where the irregularity lay. We had to terminate the process under section 249 of our regulation D.
This is one of the remedies that ZPPA is required to provide. Under 249, the Authority shall in determining the appropriate remedies for
purposes of an appeal under this part consider all circumstances surrounding the procurement including the seriousness of the breach by procuring entity.
The Authority may grant one or more of the following
remedies; under D it says ‘Order that the procurement proceedings be
terminated,” explained Chella. “We don’t recommend what happens after this.
That is up to the ministry, the procurement entity which has the power to restart the tender
and do other things. The fertilizer is still wanted so it is up to them. We can’t disclose the complainants but you can get that from the ministry.
One was a joint venture. They were two, anyone. As for those that were picked, the fact that tender process had those
irregularities, the award becomes compromised.
It was the process
which was irregular. Of course the bidders go through various stages of evaluation. They go through the preliminaries.
If they are eligible,
they were evaluated and responsive at all stages but because of that technicality the bid could not stand.”
The best evaluated bidders included Samar Agro Investments Limited, Sloutone Investments Limited, Agrtzam Investments Limited, Conchak Investments Limited, Alpha Commodities and Evergreen Fertilizer Limited.
The Mast