A Pocurement contract is defined under section 2(1) of the Public Procurement and Disposal of Public Assets (PPDPA) Act [Chapter 22:23] as a contract between a procuring entity and a contractor which results from procurement proceedings.
Good characteristics of a good procurement contract are that the subject of the procurement contract must be clear, organised, and specific, with accurate terminology and correct grammar.
It is trite that when the terms of an agreement are expressed clearly and comprehensively, the fact of contract formation and the extent of each party’s commitment can be ascertained with relative ease by the interpretation of the language in the written contract.
A contract, by its nature can either be verbal or reduced to writing but a procurement contract must be reduced into writing and satisfy the requirements under section 78 (2) of the PPDPA Act.
The list of requirements provided for under 78 is however in-exhaustive. There are other provisions that might be peculiar to a particular contract and these will also form part of the contract.
Section 62 of the PPDPA (General) Regulations, 2018 provides that a procurement contract must be based on the terms and conditions that were stated in the bidding documents and that were used for the evaluation and award of the contract.
However, parties may negotiate terms of the procurement contract that were not specified in the bidding documents where such terms are necessary for the effectiveness of the contract. It is, however, important to note that the condition that allows for contract negotiation does not apply to contracts that come into being as a result of the Direct Procurement method.
Where parties conclude a contract based on International conditions of contract and where such terms are not consistent with the provisions of the PPDPA Act, such terms and conditions shall not be binding as provided for under section 62(4) of the PPDPA General Regulations.
The responsibility of contract management lies with the procuring entity as provided for under section 79 of the PPDPA Act. In essence, the procuring entity is responsible for putting measures in place for the administration of its contracts.
To this extent therefore, the procuring entity must remain diligent in asserting its rights as provided for under the procurement contract.
In the event of breach of contract by either party, then the parties must exhaust the remedies available to themselves as provided for in the contract.
It is important to note that the General Conditions of contract issued by the Procurement Regulatory Authority of Zimbabwe, hereinafter referred to as the “Authority” are of a general nature and it is up to the procuring entity to include provisions that are of a specific nature to safeguard themselves in the event of breach.
The contract management procedures are the sole responsibility of the Accounting Officer and the Authority does not dictate for the entity how the contract is supposed to be managed.
However, the contract management procedures depend on the nature of the contract.
For example, complex contracts would possibly require the establishment of a contract management team to monitor the progress of the contract. The procuring entity must also provide the necessary human and material resources to ensure the effective administration of contracts as provided for by section 79 of the Act.
Contracts are an integral part of the procurement cycle and ought to be treated with the caution that they deserve.
The procuring entity therefore plays an important role in giving birth to the procurement contract, which is an expression of the meeting of minds between the successful bidder and the procuring entity.