By Adv. Coletha Mwambola.

  • Public Procurement Process.

Public Procurement process (es) in Tanzania is governed by the Public Procurement Act, [Cap 410 R. E:2022] (“the Act”) together with the Public Procurement Regulations GN No.  446 of 2013, as amended from time to time(“the Regulations”). The Act defines the procurement process as successive stages in the procurement cycle, including planning methods, and choice of procedures to solicit offers from tenderers, examination and evaluation of those offers, award of contract, and contract management. While the definition of the procurement process under the Act is limited to procurement only, the application of the Act extends further to cover; Disposal of public assets by tender, Non-Government entities (for procurement financed from specific public finances), Public-private partnership projects (in their relevant stages),  and the Defense and national security organs (subject to its respective open and restricted procurement or disposal methods).

  • General Governance and Institutional Arrangements.

In regulating public procurement activities in Tanzania, the Act establishes the Public Procurement Regulatory Authority (“PPRA”) whose major objective is to monitor and ensure compliance with the Act by the public bodies/ procuring entities during the procurement processes. The PPRA is headed by the Board of Directors which is also its governing body. Because PPRA exercises only a governing role, the Act requires each public body to make its respective institutional arrangements in procuring goods, services, works, and or disposal of public assets by tender. These institutional arrangements include the procuring entity’s user department, evaluation committee, procurement management unit, tender board, and the accounting officer; as briefly explained below.

  • User Department: – this department liaises and assists the procurement management unit (“PMU”) of the procuring entity in pre and post-contract award. One of its main tasks includes preparing tender requirements, technical inputs, and specifications and forwarding them to PMU. It also takes part in tender evaluation, overseeing contract implementation, and preparing any report as may be required for submission to the procurement management unit.
  • Evaluation Committee: – this is an ad hoc committee usually formed depending on each tender’s requirements, value, and complexity.It is responsible for evaluating tenders and their methodologies according to the Act and Regulations in place and reporting its findings to the PMU. Evaluation committee members may be sourced outside the procuring entity depending on the required skills, experience, and expertise vis-à-vistheir availability within the procuring entity, i.e., they may be available but indisposed of, or have a conflict of interest.
  • Procurement Management Unit (PMU): – this is a unit of the procuring entity/ public body established to manage all procurement and disposal by tender activities of the procuring entity except, award of contracts and adjudication of disputes arising therefrom. Although PMU performs a supporting role to the tender board, the head of PMU reports directly to the Accounting Officer of the procuring entity. The functions of the PMU, among others, are, to implement the tender board’s decisions, plan the procurement or disposal by tender activities of the procuring entity, recommend procurement and disposal by tender methods and procedures, and prepare tender documents, advertisements of tender opportunities, and contract documents.
  • Tender Board: – the functions of the tender boards include deliberation of the  PMU’s recommendations and approving the award of contracts, approving tendering and contract documents, reviewing all applications for variations, addenda, or amendments to ongoing contracts; andensuring that best practices in relation to procurement and disposal by tender are strictly adhered to by procuring entities. However, the tender board’s approval of the award of contracts is subject to the authorization of the responsible Accounting Officer.
  • Accounting Officer: – at the institutional level, an Accounting Officer is a final decision maker and overall responsible for the procurement decisions at the procuring entity. He or she may approve or reject tenders, subject to reasons for such rejection, and give recommendations (if any). The Accounting Officer is vested with powers to establish a tender board and appoint its members, PMU, Evaluation Committee, and Negotiation Team. He or she is also responsible for signing the contracts on behalf of the procuring entity and handling complaints at first instance between the procuring entity and suppliers, contractors, and consultants.
  • Public Procurement Methods and Procedures.

Unless a contrary intention is proved according to the tender requirements and procedures laid down by the law, a commonly used procurement method is Competitive Tendering. This method involves inviting tenderers competent and capable of supplying the required goods, services, or works to submit their bids according to the tender requirements as may be stipulated in the tender documents. However, procuring entities can use other procurement methods depending on the nature of the required goods, services, and works, like; –Single Source Procurement, Emergency Procurement, Third Party Procurement, and Procurement directly from manufacturers, dealers, and service providers. While each procurement method has its own procedure to be adhered to, a standard competitive tendering involves the following processes which can be categorized into two phases; namely, the pre-,  and post-qualification phases.

3.1 Pre-qualification phase: – Involving, Invitation to Tender/ Pre-qualify, Issuance of Tender Documents, Tender Submission, Receipt, and Opening and Tender Evaluation.

3.2 Post-qualification phase: – Involving, Notification of the Intention to Award, Negotiation, Approval, and Notification of Award of the Contract, Submission of Tender Security (If specified in the tender documents), Vetting by the Attorney General (for contracts whose value is 1 Billion or above and undertaken through International Competitive Tendering), and Contract Signing.

  • Evaluation Criteria.

The tendering documents must set out the criteria to be met by all the tenderers. A successful tenderer is determined from the tenderers whose tender is the lowest evaluated tender, in case of procurement and the highest evaluated tender in case of the disposal of public assets by tender. The procuring entity also considers the tenderer’s legal capacity, capability, and resources to carry out the contract effectively. If a bid is responsive, that is, the lowest or highest evaluated tender but does not meet the criteria set under the tendering documents, the procuring entity shall select the next lowest evaluated tender.

  • Proof of the Award of the Contract.

The legal document proving the award of the contract is the Contract for executing the tender itself. After a cool-off period has lapsed, and no complaint has been lodged, or lodged and found not to have merits, the Accounting Officer is to issue an acceptance letter to the successful tenderer and then set a date for Contract Signing. The notification of intention to award and notification of award of the contract, are the prerequisites towards contract signing. Should the successful tenderer be rejected by the procuring entity before contract signing, without assigning any good reason, those two notifications can form the basis or ground of their complaint if they find such rejection unfair.

Disclaimer

The information provided herein is for general information purposes only. None of it constitutes legal advice or creates an attorney-client relationship. For more information about the Public Procurement Process in Tanzania, please visit www.africorp.co.tz or write to us at info@africorp.co.tz

AfriCorp Attorneys
Phone Number: +255 22 211 0660
Amverton Office Park, Plot No 64 Lugalo Street
Dar es Salaam, Tanzania