CHAPTER 410
PUBLIC PROCUREMENT ACT

[PRINCIPAL LEGISLATION]

ARRANGEMENT OF SECTIONS

PART I
PRELIMINARY PROVISIONS

   Section

Title

   1.   Short title.

   2.   Application.

   3.   Interpretation.

   4.   International Obligation.

PART II
CENTRAL TENDER BOARD AND OTHER PROCUREMENT AUTHORITIES

   5.   Establishment.

   6.   Composition, appointment and procedures of the Central Tender Board.

   7.   Functions of the Central Tender Board.

   8.   Review of complaints or disputes.

   9.   Central Tender Board Secretariat.

   10.   Executive Secretary of the Board.

   11.   Ministry and independent department tender boards.

   12.   Regional tender boards.

   13.   District tender boards.

   14.   Local government authority tender board.

   15.   Parastatal tender boards.

   16.   Award of contracts.

   17.   Powers of tender boards.

   18.   Tender boards and procuring entities to strive to achieve standards of equity.

PART III
PROCUREMENT

   19.   Duties of procuring entities.

   20.   Qualifications of suppliers, contractors and consultants.

   21.   Pre-qualification proceedings.

   22.   National preferences.

   23.   Exclusive preference to local persons or firms.

   24.   Procurement from Government Stores Department.

   25.   Standards.

   26.   Language.

   27.   Tender securities.

   28.   Rejection of all tenders or all proposals.

   29.   Acceptance of tender and entry into force of a procurement contract.

   30.   Records, information and notices.

PART IV
METHODS OF PROCUREMENT

   31.   Selection of methods of procurement.

   32.   Competitive quotations.

   33.   Single source procurement.

   34.   Procurement of minor value.

   35.   Use of a procurement agent.

   36.   Competitive tendering for goods or works.

   37.   Invitation to tender and advertising.

   38.   Issue of tender documents.

   39.   Contents of tender document.

   40.   Validity of tender and tender security.

   41.   Evaluation criteria.

   42.   Receipt of tenders and tender opening.

   43.   Evaluation and comparison of tenders.

   44.   Approval of award of contract.

   45.   Selection of consultants.

   46.   Competitive selection of consultants.

   47.   Request for proposals.

   48.   Letter of invitation.

   49.   Information to consultants.

   50.   Contract.

   51.   Receipt of proposals.

   52.   Setting of threshold.

   53.   Evaluation of proposals and consideration of quality and cost.

   54.   Evaluation of quality.

   55.   Combined quality and cost evaluation.

   56.   Negotiations and award of contract.

PART V
AUTHORISATION OF CONTRACTS

   57.   Limits of authority.

   58.   Alteration and amendments.

   59.   Additions to contract value.

PART VI
PROHIBITION

   60.   Fraud and corruption.

   61.   Conducts influencing public officers.

   62.   Disclosure of payment made by way of commission.

   63.   Conduct of directors, servants or agents.

   64.   Institution of criminal proceedings.

PART VII
DISPUTE SETTLEMENT

   65.   Establishment of the Appeals Authority.

   66.   Composition and appointment of a Public Procurement Appeals Authority.

   67.   Functions of the Public Procurement Appeals Authority.

   68.   Right to review.

   69.   Settlement of complaints or disputes by procuring entities and approving authorities.

   70.   Administrative review.

   71.   Review by the Public Procurement Appeals Authority.

   72.   Certain rules applicable to review proceedings under sections 69, 70 and 71.

   73.   Suspension of procurement proceedings.

   74.   Judicial review.

PART VIII
MISCELLANEOUS PROVISIONS

   75.   Regulations.

   76.   Disapplication of other laws.

SCHEDULES

CHAPTER 410
THE PUBLIC PROCUREMENT ACT

An Act to regulate public procurement in the Government of the United Republic and for related matters.

[1st July, 2001]
[G.N. No. 129 of 2001]

Act No. 3 of 2001

PART I
PRELIMINARY PROVISIONS (ss 1-4)

1.   Short title

   This Act may be cited as the Public Procurement Act.

2.   Application

   (1) This Act shall apply to all procurement undertaken by a procuring entity except where it is provided otherwise in this Act.

   (2) This Act, shall not apply–

   (a)   to any parastatal organization except where a parastatal organization receives Government subsidy or subvention and is specified in the Regulations as being a Government Department for the purposes of this Act;

   (b)   to the procurement involving military equipment and supplies for the Defence Forces of the United Republic;

   (c)   procurement involving the equipment and supplies of arms and ammunition by Tanzania Intelligence and Security Service, the Police Force or the Prisons Department.

3.   Interpretation

   (1) In this Act, unless the context requires otherwise–

   "accounting officer" means a Government officer appointed in accordance with the provisions of Public Finance Act * to hold a vote and account for all monies expended from that vote;

   "approving Authority" means an accounting officer, a Ministry tender board, a regional tender board, a district tender Board, a local government tender board, a parastatal tender board or the central tender board when approving procurement that is undertaken by a procuring entity;

   "Board" means the central tender board established under section 5;

   "competitive selection" means the method of procurement whereby limited number of consultants or providers of services are invited by the procuring entity to compete with each other in submitting either unpriced or priced tenders, where the tenders are evaluated either on the basis, of quality alone or on the basis of a combination of quality and cost;

   "competitive tendering" or "tendering" means the method of procurement whereby suppliers, contractors or consultants are invited by the procuring entity to compete with each other in submitting priced tenders for goods, works or services;

   "consultant" means a company, corporation, organisation, partnership or individual person engaged in or able to be engaged in the business of providing services in architecture, economics, engineering, surveying or any field of professional activity, and who is, according to the context, a potential party or the party to a contract with the procuring entity;

   "contractor" means a company, corporation, organisation, partnership or individual person engaged in civil, electrical or mechanical engineering or in construction or building work of any kind including repairs and renovation, and who is, according to the context, a potential party or the part to a procurement contract with the procuring entity;

   "corrupt practice" means the offering, giving, receiving, or soliciting of any thing of value to influence the action of public officer in the procurement process or contract execution;

   "Department" in relation to a Ministry of Government or other public authority or public body, includes any division or unit by whatever name known of that ministry, authority or other body;

   "fraudulent practice" means a misrepresentation of facts in order to influence a procurement process or the execution of a contract to the detriment of the Government and includes collusive practices among tenderers (prior to or after submission) designed to establish tender prices at artificial non-competitive levels and to deprive the Government of the benefits of free and open competition;

   "goods" means raw materials, products, equipment and other physical objects of every kind and description, whether in solid, liquid or gaseous form, electricity, intangible assets and intellectual property, as well as services incidental to the supply of the goods provided that the value of the services does not exceed the value of the goods themselves;

   "Government" means the Government of the United Republic of Tanzania;

   "limit of authority" means the maximum value of any single contract that may be approved by an approving authority, or entered into by procuring entity without the prior approval of an approving authority as set out in the regulations;

   "lowest evaluated cost" means the price offered by a supplier, contractor, or consultant that is found to be the lowest after consideration of all relevant factors and the calculation of any weighing for these factors, provided that such factors have been specified in the tender documents;

   "Minister" means the Minister for the time being responsible for matters relating to finance;

   "minor value" means an amount of money up to a maximum limit for the procurement of goods, works and services of a minor nature, to be determined each year by the Minister;

   "parastatal organisation" means–

   (a)   a body corporate established by or under any Act or Ordinance other than the Companies Act *; or

   (b)   any corporation registered under the Companies Ordinance, in which not less than fifty percent of the share capital is owned by the Government or by another parastatal organisation, or in the case of a company which is limited by guarantee, where the Government has undertaken to meet fifty percent or more of the liabilities of that company; or

   (c)   any company, management, board, association or statutory body in which the Government has a majority or controlling interest and includes a government agency established under the Executive Agencies Act *;

   "person" includes any association of persons whether incorporated or not;

   "post-qualification" means a formal procedure applied after tenders have been evaluated prior to award of contract, to determine whether or not the lowest evaluated tenderer has the experience, capability and resources to carry out the contract effectively;

   "pre-qualification" means a formal procedure whereby suppliers, contractors or consultants are invited to submit details of their resources, and capabilities and are screened prior to invitation to tender on the basis of meeting the minimum criteria on experience, resources, capacity and financial standing;

   "procurement" means buying, purchasing, renting, leasing or otherwise acquiring any goods, works or services by a procuring entity spending public funds on behalf of a ministry, department or regional administration of the Government or public body and includes all functions that pertain to the obtaining of any goods, works or services, including description of requirements, selection and invitation of tenderers and preparation and award of contracts;

   "procurement agent" means a person specialised in procurement who acts for another called the principal in dealing with third parties in matters relating to procurement;

   "procurement contract" means any licence, permit, or other concession or authority issued by a public body or entered into between a public body and a supplier, contractor or consultant, resulting from procurement proceedings for carrying out construction or other related works or for the supply of any goods or services;

   "procurement expert" or "specialist" means a person who is engaged in a profession, occupation or calling in which recourse to procurement is directly or indirectly involved and has such knowledge and experience of the practice of procurement;

   "procurement proceedings" means the proceedings to be followed by a procuring entity or any approving authority when engaging in procurement;

   "procuring entity" means ministry, Government department, agency, parastatal organisation, a regional or a local authority as the case may be;

   "public body or public authority" means–

   (a)   the Government;

   (b)   any ministry, department or agency of government;

   (c)   any body corporate or statutory body or authority established for the purposes of the Government;

   (d)   any company registered under the Companies Act *, being a company in which the Government or an agency of Government, whether by the holding of shares or by other financial input, is in the position to influence the policy of the company;

   (e)   any local government authority;

   (f)   any parastatal organisation;

   "public officer or officer" means–

   (a)   any person holding or acting in an office of emolument in the services of the Government;

   (b)   a person holding or acting in the office of Minister in the Government;

   (c)   an employee of any body corporate such as is referred to in the definition of public body or public authority;

   (d)   any person conducting negotiations, for or in relation to a public contract, or a prospective public contract on behalf of a public body or public authority; or

   (e)   a person who is a consultant to a public body or public authority;

   "secretary" means the Executive Secretary of the Central Tender Board appointed under section 10 and includes a secretary of the appropriate tender board;

   "services" means any object of procurement other than goods or works, which involve the furnishing of labour, time or effort including the delivery of reports, drawings or designs, or the hire or use of vehicles, machinery or equipment for the purposes of providing transport, or for carrying out work of any kind, with or without the provision of drivers, operators or technicians;

   "successful tender" means the tender selected by the procuring entity as–

   (a)   offering the lowest evaluated cost, in case the method of procurement used was competitive tendering; or

   (b)   being the most responsive to the needs of the procuring entity and to the advantage of the Government, in case the method of procurement used was competitive quotations, single source procurement, competitive selection or where goods or services of minor value were procured;

   "supplier" means a company, corporation, organisation, partnership or individual person supplying goods or services, hiring equipment or providing transport services and who is, according to the contract, a potential party or the party to a procurement contract with the procuring entity;

   "tender" means an offer, proposal or quotation made by a supplier, contractor or consultant in response to a request by a procuring entity;

   "terms of reference" means the statement issued by the procuring entity giving the definition of the objectives, goals and scope of the services, including where applicable the means to be used;

   "works" means–

   (a)   all works associated with the construction, reconstruction, demolition, repair or renovation of a building, structure, road or airfield;

   (b)   any other civil works, such as site preparation, excavation erection, building, installation of equipment or materials, decoration and finishing;

   (c)   services which are tendered and contracted on the basics of performance of a measurable physical output such as drilling, mapping, satellite photography or seismic investigations:

   Provided that contracts which include the provision of works and services shall be regarded as works contracts if the total value of the works is greater than the value of the services covered by the contract.

   (2) For purposes of this Act, a person is presumed to be an associate if–

   (a)   in the case of a public officer, that person is the public officer's husband, wife or relative, or a husband or wife of the relative of the public officer;

   (b)   that person is in partnership with the public officer; or

   (c)   in the case of a body corporate, the public officer is a controller of the body corporate or the public officer and the persons who are his associates together are controllers of it.

   (3) In this section, "relative" means brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendent and references to a husband or wife and a reputed husband or wife, and for the purposes of this subsection, a relationship shall be established as if any illegitimate child, step child or adopted child of a person had been a child born to the person in wedlock.

4.   International obligation

   To the extent that this Act conflicts with an obligation of the United Republic under or arising out of–

   (a)   any treaty or other form of agreement to which the United Republic is a party with one or more other states or political subdivisions of such states; or

   (b)   any grant agreement entered into by the United Republic with an inter-governmental or international financing institution in which the United Republic is the beneficiary,

the requirement of such treaty or agreement shall prevail, but in all other respects, the procurement shall be governed by this Act.

PART II
CENTRAL TENDER BOARD AND OTHER PROCUREMENT AUTHORITIES (ss 5-18)

5.   Establishment

   (1) There is hereby established within the Ministry responsible for finance the Central Tender Board.

   (2) The Board shall–

   (a)   be a body corporate with perpetual succession and a common seal;

   (b)   in its corporate name be capable of suing and be sued;

   (c)   for and in connection with the purposes of this Act, be capable for holding, purchasing and otherwise acquiring and disposing of movable or immovable property.

6.   Composition, appointment and procedures of the Central Tender Board

   The composition of the Central Tender Board, the method of appointment of members and the procedures to be followed by the Board shall be set out in the First Schedule to this Act.

7.   Functions of the Central Tender Board

   (1) The Board shall, on behalf of the Government–

   (a)   oversee and monitor the conduct of procurement by ministries and departments of Government, regions, districts and parastatal organizations;

   (b)   in relation to local government authorities–

      (i)   study the conduct of procurement by local authorities with a view of insuring the full compliance by them with their established procurement system;

      (ii)   advise local government authorities on all matters regarding procurement and the efficient operation of their established procurement system and make such recommendations as it deems fit;

   (c)   advise the Government on all matters regarding procurement and the efficient operation of the Government's procurement system and make recommendation as it deems fit;

   (d)   in co-operation with such local or international organizations or institutions, supervise the management and training of a cadre of procurement specialist staff within the civil service;

   (e)   approve the issue of tender or the use of alternative method of procurement as may be prescribed in the regulations;

   (f)   receive tender and hold tender openings in public, review tender evaluations and recommendations made by procuring entities, and where appropriate, authorize awards of contract;

   (g)   review all applications for variations, addenda or amendments which exceed the laid-down limits to on-going contracts where the original contract has previously been approved by the Board, in all cases where the value of goods, works or services being procured by ministries, departments of Government, regions, district and parastatal organizations exceed the limit of authority of such ministry or department of Government tender board, a regional tender board, district tender board or otherwise as the Minister may direct;

   (h)   review and approve sales by tender being made by ministries and departments of Government or regions or districts or parastatal organizations where the estimated value of the goods or any other forms of property that are being sold, exceeds the limit of the authority of a ministry or department of Government or region or district or parastatal tender board, as the case may be, or otherwise as the Minister may direct.

8.   Review of complaints or disputes

   The Board shall review complaints or disputes and make decisions in accordance with subsection (6) of section 69 of this Act.

9.   Central Tender Board Secretariat

   (1) There shall be a Secretariat of the Board which shall assist the Board in its daily discharge of its functions.

   (2) The Secretariat shall consist of procurement and other technical specialists together with the necessary supporting and administrative staff.

   (3) The Secretariat shall advise and assist ministries and departments of Government on tendering matters.

   (4) The composition of the Secretariat, and the appointment of members and the procedure to be followed by the Secretariat shall be prescribed in the Regulations made by the Minister.

10.   Executive Secretary of the Board

   (1) There shall be an Executive Secretary of the Board who shall perform the functions conferred on him by this Act and such other functions as may be conferred on him by the Board.

   (2) The Executive Secretary shall be appointed by the President on such terms and conditions as the President determines.

   (3) The Executive Secretary shall be appointed from among the registered professional persons who possess qualifications in either engineering, architecture, law, materials management, quantity surveying, business administration, economic development planning or in related fields and who have had substantial experience or training in such fields including proven record of procurement experience.

   (4) The Executive Secretary shall attend all meetings of the Board but shall not vote on any matter under discussion.

   (5) The Executive Secretary shall be responsible for the administration of the day to day affairs of the Board.

11.   Ministry and independent department tender boards

   (1) There shall be in each Ministry or independent department of Government, a tender board for procurement of goods, services and works.

   (2) The composition of a tender board in each ministry or independent department of the Government and the method of appointment of members, and the procedures to be followed by such tender board, shall be as prescribed in the Second Schedule to this Act.

   (3) A ministry or independent department tender board shall–

   (a)   approve the issue of tenders or the use of alternative method of procurement as prescribed in the regulations, receive tenders and hold tender openings in public, review tender evaluations and recommendations made by a department of that ministry or independent department, and, where appropriate, authorize awards contract;

   (b)   review all applications for variations, addenda or amendments which exceed the laid-down limits to on-going contracts where the original contract has previously been approved by the ministry or independent department tender board, in all cases where the value of goods, works or services being procured by such ministry or independent departments exceed the limit of authority of the Accounting Officer and is within the authority of that ministry or independent department tender board.

   (4) The Accounting Officer of each ministry or department of Government shall undertake the procurement in accordance with the limits of the authority set out in the Regulations.

   (5) An Accounting Officer may delegate to a Head of Department within the same ministry or department, his authority to procure up to a limit not exceeding that which is specified in the Regulations and such delegation shall be made in writing and for a period not exceeding the period the Accounting Officer shall himself serve in that position.

12.   Regional tender boards

   (1) There shall be in each region, a regional tender board for the procurement of goods, works and services in respect of regional heads of expenditure falling under Accounting Officers designated as such under the Public Finance Act *.

   (2) The composition of a regional tender board and the method of appointment of the members, and the procedures to be followed by such a tender board, shall be prescribed in the Third Schedule to this Act.

   (3) A regional tender board shall–

   (a)   approve the issue of tenders or the use of alternative methods of procurement as prescribed in the regulations, receive tenders and hold tender openings in pubic, review tender evaluations and recommendations made by procuring entities and, where appropriate, authorize awards of contract;

   (b)   review all applications for variations, addenda or amendments which exceed the laid-down limits to on-going contracts where the original contract has previously been approved by the region tender board, in all cases where the value of goods, works or services being procured by the departments of Government within that region exceed the limit of authority of the respective Accounting Officer and is within the authority of that regional tender board.

   (4) The Accounting Officer of each regional administration of the Government shall undertake the procurement in accordance with the limits of authority prescribed in the Regulations.

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