The evaluation of the law regarding tenders: a case study of ZESCO

Abstract

This research paper is an evaluation of the law regarding tenders in the Zambian legal system.Tenders are currently regulated by the Public Procurement Act of 2008 which, among its other provisions, gives the remedy of arbitration for dissatisfied bidders, thus effectively precluding them from bringing tender issues to litigation. As a result, case law involving tenders tends to focus on other issues such as contractual obligations rather than going to the heart of the disputed tender itself Therefore, bidders are not always adequately protected.This research undertook to answer the question of how tenders may be more effectively regulated in Zambia. This was done by evaluating the current tender regime in Zambia and by using ZESCO as a case study to see how these rules are practically applied and carried out.The research methodology used was descriptive desk research with some primary research involving the interview of a member of the procurement department at ZESCO. The research found that although under the Public Procurement Act there was a near comprehensive regulatory tender regime, the practical application of the rules and the exercise of regulatory functions by the Zambia Public Procurement Authority left much to be desired. It found that bidders, disgruntled with the tender process, had limited avenues for rectification of the problems they faced. In addition, it appeared that due to appointment practices at the Authority, a situation arose where it was effectively Government policing Government, Thus, the research paper made several recommendations such as the Director-General of the Authority being appointed independent of Government and bidders being able to bring their cases to court to be adjudicated. This research paper concluded that the law on tenders be reevaluated to ensure transparency and effectiveness of the Authority as a regulatory body and also to provide the courts as a form of dispute resolution.The research shall incorporate ZESCO as the case study to better demonstrate the regulation of the tender regime in Zambia. This paper shall discuss how tenders are made and regulated and shall describe the challenges that face bidders in the public procurement process. In addition, this research paper shall give recommendations on how the governing Act and the Courts can better regulate and oversee tenders in the current public procurement regime.