SWAZILAND

GOVERNMENT GAZETTE
VO L. XLI X] MB ABANE, Friday SE PTE MB ER 9'" 20 11 [No. 97

CONTENTS
No. Page

PAll.T B - ACT

7 . The Procurement Ac t, 20 11 ....... ..................... .... .. .. ..... .. .......... ............. .. ........... ... ... ...... S52

PUBLISHED DY AlJTllORITY
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1 llE PROCUREMENT /\CT. 20 11

(Act No. 7 of201 I)

I ASSENT

MSWATI Ill
King of Swazi land
2J'd August, 20 11

AN ACT
ENTITLED

AN ACT to provide for the regulation and control of practi ces in respect of public
procurement.

ENACTED by the King and the Parliament of Swaziland.

ARRANGEMENT or SECTION S

PART I
PRELIMINARY

I. Shon Tit le and Cornmence111e11t

2. lnterpre1ation

3. Purpose and Objectives

4. /\pplication

5. International Obligations

6. Deviations

7. Public /\ccess ibility

8. Introduction of Infornrntion and Communi cation Technology

PART 2
SWAZILAND PUBLIC PRO CU REME NT REGULATORY AGENCY

9. Establishmenl of the S\vaziland Public Procument Regulatory Agency

10. runctions of the Agency

11 . Powers of the J\genc_v

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12. Cooperation wilh oversiglH aulhorilies

13. Establishment and Composit ion of 13oard ol' Direclors of !he Agency

14. Terminalion of0f1ice of Board Members

15. Meetings of the Board

16. Committees of the Board

17. Disclosure of Interest

18. Appointment and r unct ions of Execu ti ve Direclor

19. Staff of the Agency

20. Funds of the Agency

2 1. Accounts and Aud i!

22. Annual Management Plan and Budge t

23. Annu al Report

PART 3
TEN DER BOA RDS AND PROCUREMENT AUTI IORI SATIONS

24. Approva ls Authorities and Procuremen t Authori sations

25. Establishment and Compos ition of Swazi land Government Tender Board

26. Sub-Committees of !he Govemmen tTender Board

27. Estab lishment of Entity Tender Boards and Levels of Authority

28. Composition and Appointment of Entity Tender Boards

29. Meetin gs of Tender Boards

30. Disc losure of Interest

PART 4
TECHNICAL SECRETARIAT AND RESPON SlBILI rt ES FOR PROCUREMEN1

3 1. Respon sibility for Procurement Activities

32. Establ ishment of theTechni cal Secretariat

33. fu nctions of the Technical Secretariat

34. Functi ons of Procuring Ent ities

35. Enti ty Procuremenl Unit s

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36. runctions of Requesting Ent ities

37. Procurement of Common Use Items

PART 5
PROCUREMENT PRINCIPLES, METHODS AND RULES

38. Procurement Principles

39. Non Discrimination and Measures to Promote Swazi Companies

40. Supplier Eligibility

41. Supplier Qualifications

42. Procurement Methods and Process

43. Procedures for procurement of infrastructure on the basis of private financing and for
award of concessions

44. General Procurement Rules

45. Contract /\ward Procedures

PART 6
/\DMINISTR/\TIVE REVIEW AND SUSPENS ION or
TENDERERS AND SUP PU ERS

46. Right lo l~ evicw

47. Review by Procuring Entity

48. Righi to /\clministrativc Review

49. /\clministrntive Review Procedures

50. Consl itution of an Independen t Review Commiltce

51. Administrative Review by Independent Rcvie\\' Committee

52. Remedies by Independent Review Com mittee

SJ . Not ification to other Bidders

Stl. Prohibition on q111trnc t nwnrd dming review proceedings

55. Suspension of Tcnderers nncl Suppliers

56. (~rounds for Suspension

57. Appeal against Suspension

.i8. Legal rcpresenlntion

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PART 7
CODES OF CONDUCT, OFFENCES AND PENALTIES

S9 . Codes of Conduct

60. Conduct of Public Officers and Politic ians in vo lved in Procurement

6 1. Conduct ofTenderers and Suppl iers

62. Offences

63 . Penalties

64. Protection from Prosecution

PART 8
MISCELLANEOUS

6S. Public Procurement Regul ation s

66. Public Procurement Manual s, Circulars and In structions

PART I
PH.CLIM INA RY
Short title and comme11ceme11t

I . ( I ) T his Act may be cited as the Public l'rocurement Ac t, 2011 , and shall come into fo rce on
such date as the Mini ster may, by No ti ce pu bli shed in th e Gazett e, determin e.

(2) The Minister may designate different elates for the coming int o force or different parts
or provision s of thi s Act.

Interpretation

2. In thi s A ct, unless the contex t otherwise requires-

.. A gency" means the Swaziland Public Procurement Regulatory Agency estab lished by section
9·,

'·approvals authority" means the body or individual w ith authority to grant pri or authori sation
of certain key steps in the procurement process in accordance w ith secti on 24 and the level s of
authority specified in public procurement regulati ons;

" Board" means the Board o f Directors of the Agency estab li shed by section 13;

"category A public enterpri se" has the meaning ascrib ed to it in th e Publi c Enterprises (Cont ro l
and Monitoring) Act, 1989;

"Cabinet" means the Cabinet of Mini sters estab li shed in term s or section 66 of the Constituti on
of Swaziland Act, 200S;

.. Chief Executi ve Officer" means the Chief Execut ive Officer of a pub li c enterpri se;

'·citizen servi ce provider" means a natural person or incorp orated company who lly owned by
and contro lled by persons who are citizens o f Swaziland by descent in terms of secti on 4 1 of
the Constituti on of Swazi land Ac t, 200S;
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"close relative" means a parent. a spouse, a child. a sibling. or a parent. child or sibl in g of a
spo use:

"coercive practice'' means harming or threatening lo harm. directly or indirectly, a person, or the
properly of that person. so as to innuence participation or a deci sion in a procurement process
or affect the execut ion of a contract;

"co llu si ve practice .. means a scheme or arnmgement between two or more tenderers, wi th or
without the knowledge of the rrocuring en tity, designed to establish tender pri ces at an artificial,
or non-competitive level ;

"connict of interest" means circum stances in which the personal interest of an officer. or of a
close relati ve or close associate o f an officer, might benefit. directly or indirectly, from their
official actions;

"consulting services .. means services of an intellectual or advisory nature, includi ng the del ivery
of reports, drnwings or designs and in cludes architectural or engineering <ksign or superv ision,
accountancy. auditing, finan cial services, procu rement services. trainin g and capacity buildin g
services, management advi ce, policy studies and adv ice, assistance with instit utional reform s
and sonware development:

"contrnct" means an agreement between a procuring en tity and a supplier for the provision of
goods, works or serv ices;

"control Iin g officer.. means an o fficer designated by th e Minister in terms of t he fi nanci aI and
accounting instructions ns the officer responsible for the control of ench head of expenditu re and
each it em of revenu e in the est imnlcs of revenue and ex penditure laid before Parliament:

"corrupt practice .. means the offering, giving, receiving or solicit ing. directly or indirectly. of
ony thing of value to innucnce th e action of n public officer or politi cian in the procurement
rrocess or in contract execution:

"Executi ve Director .. means the Executive Director of the /\gency appointed in accordance wi th
section 18;

"fraudu lent practice.. me<l nS a 111 isrepresenlal ion Or Omi ssi on of facts i 11 order lo in nuence <l
procurement process or the exccut ion of a contract:

"goods.. means objects of every kind and description. including raw mat er ials, products an~I
equipment , objects in so lid, liquid or gaseous form. and electricity. and includes work s and
services incidental to the supply of the goods if the value of those incidental works and servi ces
does not exceed that of the goods themsel ves;

"Government Tender Roard'' means the Swaziland Govern men t Tender 13nard established under
section 25;

" in vitation document'' menns a tender document. request for proposals, request for quota ti ons
or any other document inviting tcndcrers lo submit a tender:

" lead procuring entity .. means th e procurin g entity designated with responsibility for procuring
a certain category of items or common use items on behalf of all or a group of requesting entities
in accordance wi th secti on 3 1;

"l'vfinister" means the mini ster responsible for finan ce:

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"11011-consu lling serv ices" means services olhcr than consulting servi ces, ror the carrying out of
work or any kind, with or withouL the use of vehicles, machinery or equipment or the provi sion
of operators, technicians or drivers;

"po litician" means any person who hold s a position or-

I. Senator

2. Member of Parliament

3. Member of Bucopho

4. Regional Admin istrator

5. King's (Advisory) Counci llor

6. Ch ief and Chief's Councillor

7. Mu ni cipal Counci llor

8. lndvu na YeNk huncll a

"procurement" means the acq uisition, by purchase, rental, lease, hire purchase, license, franchise
or any other con tractual means, of any type of goods, works, ser vices or assets or any combination
or goods, works, ser vices or assets;

·'public procu rement" means procurement using public fund s, whether wholl y or partially, in
accordance with thi s Act;

··public procuremen t regulations means regulations issued in terms of section 65;

·'procuring entity" means any en tity designated 10 condu ct public procurcmenl activi ti es, in
accordance with section 3 1, whether on behalf of itself or another request ing entity, and may
include the Technical Secrelariat and any Ministry, Department, Agency, category A public
en terprise or Local Government Authority;

·'public funds" means monetary resou rces appropriated to requesting entities through budgetary
processes, in cl uding the Consolidated rund, grants and cred its put at the disposal of requesting
entities by foreign donors, and revenues generated by requesting entilies;

"pu bI ic officer" means any officer employed in the pub I ic service including i11 procuring en ti ties,
requesting en1ities, the Agency and Tender RoarJs;

·'requesting entity" means any Ministry, Department, Agency, category A public en terpri se,
Local Government Authority or other body initiating a procurement rl.!quirement ;

··services" means any object or procurement other than goods or works, whi ch invo l ve !hi!
furnishing of labour, time or effort;

'"statement of requirements" means the description of the technical and q11ality characterist ics
or the goods, works or services being procured;

'"supplier" mean s a natural person or an incorporated body that i s party 10 a contract with a
procuring entity for the provision of goods, works or services and includes a contrac tor, consullant
or serv ice provider;
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"Swazi company" means a company which is regi stered in Swazil and and ofvvhich at least 60%
of the con trollin g shares are owned by Swaziland citi 7.ens:

" tend er'' means an offer to pro vide goods, works or ser vices subm itted by a tenderer in response
10 an in vitation from a procurin g entity and includes tenders. proposals. quotat ions and. where
appli cable, appli cation s to pre-qu<'llif'y :

" Tend er Board '' rn em1s the appropriate Ent ity Tender Board established in accordance w ith
section 27. and includes, th e Swa ziland Governm ent Tender Board establ ished under section
25:

" tenderer'' means an entity that offers to prov ide goods, w orks or services in respo nse to an
in vitation from a procuring entity and includes. where appl icable potential tencl erers and
applicants to pre- qualify;

" undue influence" includes any form of pressure brought to bear by any official, elec1ecl or
appointed, who is in a positi on lo either prov ide a benefit to. or exncl punishment agai nst. any
perso n in vo lved in procurement acti vities or decis ions:

"works" means all work assoc iated w ith the con stru ction . reconstruction, dem oli tion. repair or
renovation of a building. road, structure or activiti es. such as site preparation, excavation.
erection, building. in stallation o f equipment or material s. decorati on and fini shing. as well as
servi ces incidental to constructi on such as drilling. mappin g. satelli te ph otogra phy. seismic
inves tigation s and similar ser vices prov id ed pursuant lo the con trnct. if th e va l ue or those
services does not exceed th at o f th e w ork s them sel ves.

P1111JOse a11d Objectives

3. ( I ) The purpose of thi s /\ct shall be to establish public procurement instit utio ns and tn
regulnte the procurem ent o f good s. work s and serv ices by procurin g entities.

(2) Th e obj ecti ves o f thi s ;\ct shall be lo establi sh a systc111 and practices that serve l o-

(a) ensure tran sparency and acco untability in publi c procurement \\ hile ma int aini ng
appropri<tt e confid entiality o f infonn<t ti on:

(b) <tchieve economy, efficiency and maximum competit ion lo ensure va lue for money
in th e use or publi c fund s;

(c) promote more di verse pri vate sector participation, through fai r and non-
di scriminatory treatment of lend ercrs;

(d) develo p eco nomic capacity in Swazi lan d, th rough the pr<l\ is io n of opportunit ies
for Swazi companies to participat e in publi c procurement: and .

(e) promote regi onal and internati onal trade in accordan ce wi th Clgreemcnts entered in to
by th e Government o f Swaziland.

Application

4. (I) Thi s ;\ct shall appl y to all publi c procurement con d ucted by or fo r req uesti ng o r
procuring entiti es, except as provided in sub-sectio n 4(2) and secti on 5.

(2 ) Where procurement is related to de fence or national securi ty. the app lica ti on o f th e
rul es and procedures set o ut in thi s A ct may be modifi ed. but o nl y to the extent necessary fo r
the protecti on o f the publi c interest nnd in accord ancc w ith proced ures ng:reed wit h the /\gency.
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lntematio11al Oblig a1io11s

5. ( I ) Where thi s A ct con fli cts w ith an obligation ol' the Government ofSwazi lanJ ar ising out
o f' an agreement w ith one or more States or w ith an int ernational organ isat ion, the provisions of
the agreement shall , to the ex tent that thi s Act conflicts wi th that ob ligat ion, prevail over this
Act; but in all other respects, the procuremen t sh all be govern ed by th is Act.

(2) Governm en t entities shall seek the op ini on of the Agency before entering in to any
agreement whi ch requires the appli cat ion o r procurement proced ures or arrangements L)thcr
than those in thi s Ac t.

Deviations

6. ( I ) A deviation from the use of a publi c proc uremen t method, rule, process or documen t
may be permitt ed by th e Agency -

(a) where exceptional req uirements make it im possibk, impractica l or uneco nomical to
compl y w ith th e Act;

(b) w here m ark et co ndition s or behav i o ur d o not all ow effec t ive applica ti o n of the
methods, rules, processes or docum ents;

(c) fo r sp ec ia li sed or parti cular requirem ent s th at are r egula ted or gove rn ed by
harmoni sed international standards or pract ices; or,

(d) w here nati ona l securit y may be comp ro mised.

(2) T he prnced ure fo r apply ing for and issuing dev iat ions sha ll be as specified in Regu lations.

Public Accessibility

7. T he text o f this Act, publi c procurement regul ati ons and all admi nistrat ive rulings and
d irecti ves of genera l application in conn ecti on w ith procurement covered by this Act, and al l
amendments thereo f, shall be promptly made accessi ble to the p ubli c and systemati ca lly
maintained by the A gency.

Introduction of lnformatio11 and Communicatio11 Technology

8. (I) The A gency shall exa mine and recommend ways of introducing i n pub I ic procurement,
at appropriate stages, the use of information and communi cati ons technology, and ot her techn ica l
innovations, where such techno logy promotes the objecti ves o f this Act.

(2) T he A gency may issue circulars an d instructi ons on measures and program mes to
intro duce the use of info rm at ion and communica ti ons technology in public procurement i n
accordance wi th section 66.

(3) T he Agency shall identify an y req uired add it ions or amendments to the lega l and
regulatory framework fo r publi c pro curement to support the app lica tion of' informat ion and
commu nicati ons techn ology and shall promote their in troducti on.
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PART II
SWA7.ILAND PUBLIC PROCUREMENT REGULATORY AGENCY

Establisltme111 ofSwaziland Public Procurement Regulato1:i1Agency

9. (I) There is hereby established th e Swaziland Public Procurement Regulnto ry Agency.

(2) The Agency sha ll serve as an independent regu latory body. with respon sibility for
policy. regulation, oversight. professional development and information management and
dissernirrntion in the fi eld of public procurement.

(3) The /\gency shall be a body corpornte with perpetual succession and a common sea l,
capable of sui ng and of being sued in its corp orate name. and with power. subject to the
provisions orthi s /\cl , l o do all such acts and things as a body corpora te 111ay. by law. do or
perform.

Functions nftlte Agency

10. Without prejudice lo the generality of section 9 (2), the function s of the Agency are -

(a) policy formulation, in pursuan ce of which the t\gency sha ll -

(i) advise the Government and procuring entities on procurement policy and all
other matters relating to public procurement ; and.

(ii) report on the performance and functioning oflhc public prornrcment system
and recom mend ch anges~

(h) regulation. in pursuance o f which the Agency sha l l

(i) or
formulate regul;.ition s govern in g the procurement goods. \\"orks and se rvices
for the Government and recommend these lo the tvlinister;

(ii) issue public procurement manuals. circulars and instructions lo provide rurther
g uidan ce on the int erpre tati on nnd applicntion of this /\ct and public
procurement regu latio ns issued under thi s /\ ct;

(iii) issue standard lender documents and other standard procurement documents
whose use shall be mandatory in al l procurement proceedi ngs by procuri ng
entities. unless otherwise specified by the A gency:

(iv) promote measures to facilitate participntion by Swazi companies in public

procurement; and,

(v) consider applications for dev iations to public procurement processes. methods
and rules in accordance w ith secti on 6:

(c) overs ight of public procurement, in purc;uance of which the Agency slrnll -

(i) monitor compliance wi th thi s t\cl and procurement performan ce by procurin g

enti ti es;

( ii ) condu ct audits of any procurement activities governed by I his In\\:

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(iii) investigate the co nJt1ct of an) procurement activities that are st1spected to
involve vio lations of thi s l<lw or public procurement regulations;

(iv) refer breaches of thi s Ac:t Lo the rek vant budgetary, oversight and law
enforcement bodies or initiate prosecution action b) the Agency where
appropriate;

(v) constitute and provide secretariat services lo Independent Review Co mmittees.

where required for the purposes of ad1ninistra1ivc review; and,

(vi) maintain a li st oftenclerers and supp liers who are suspended from participati on
in public procurement ;

(d) capacity building in, and professionalis<ltion of the public procure1rn;~nt system, in
pursuance of which the Agency shal I -

(i) coordinate and promote capacity- building and profess ional develo pment in
the public procurement system ; and,

(ii) work with the appropriate human resources authorities to set standard s and
professional qua Ii ficat ion s req uirements for staff involved in procurement
activiti es; and,

(e) data and information management, in pursuance of which th e Agency shall organise
and maintain systems for the management and public di ssemint1tion of' procurement
datn, statisti cs and informati on.

Powers ofthe Agency

11. (I) The Agency shall have th e compelence, au thority, power and responsibility 10 enforce
this Act and public procurement regulations issued under thi s /\ct.

(2) In 1he exercise of its fun ction s, th e Agency shall have th e power to-

(a) co llect any data or reports from procurin g entities, as determ ined by the Agency;

(b) have access to all information, documents, records and reports belonging to a procuring
entit y in respect of any public procurement process;

(c) lrnve access, at all reasonable times to the premises of any procuring enti ty whose
procurement is being monitored;

td) issue an order to any person to provide testimony regardin g any matter that the
Agency considers, in the exercise of reaso nabl e disc retion , relevant to the conduct
of its functions;

(e) cal l for any relevant information from pe rsons responsible for lhe financial
admin i stration of any procuring enti ty w hose procurement is being mo ni to red ;

(I) constitute Independent Review Commillees in accordance wit h section 50;

(g) suspend bidders and suppliers from pa1iicipati on in publi c procurement in accordance
with secti on 55 ;
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(h) subject to section 162 (5) of the Constitution . prosecute breC'l ches of thi s /\cl or
make recomm endation s for further action to other budgetary. oversight and l aw
enforcement bodies; and,

(i) authorise deviations in nccordance with secti on 6.

Cnnpemtio11 with oversight authorities

I 2. The Agency shall coorerate with other bodies resronsible for exercising oversight functions
over public procurement in Swazil and and for that purpose may establish mechanisms for
sharing information and work joint ly with such bodies.

Establislt111e11t and Composition of Board of Director.'i of the Agency

13. (I) There is hereby cstab l islied n Boll rd of Directors of the /\gency, whi ch shall be the
gnvern ing body of the Agency.

(2) The Board shn 11 be co mposed or a nnn-execut i ve Chairperson and four non-executive
members, amongst \Vhom at least two shall be from the privnle sector. civi l society or professional
bodies. who shall be arpointed by the Minister. in consu ltation with the Cabi net , from among
person s of good standing and recognised for th eir high leve ls of rrofcssional competence and
integrity.

( 3) The Chairperson and the members shal I be appointed from a range of professional
backgrounds, which 111ay include, but not be limited to procurement, law, management.
accountancy, auditing, engineering, professional development and co mmerce.

(4) In <1prointing the Clrnirperson and the members. the Minist er shall seek lo create a
noard with multi-sectoral sk ill s and experi ence. which is representative of all key stakeho ld ers
in th e public procurement system and rcncct s th e rnn gc or fun ction s o l. lhe Authority.

(5) The nonrd may co-opt advi sers to provide specifi c adv ice to assist it in the discharge or
its functions. Advi sers shall not vote on any sub111i ssion and shall only attend the part of the
meetin g on which their advice i s required.

(6) The tenure of the 13oard members shall be three years and they may be appointed for no
more than two consecutive terms.

(7) Notwithstanding the pro\'i sions of subsection (5) , when appointing 111c111bers of th e,
Board for the first ti me, on co 111mence111ent of th is /\ct. the Mi 11 ister sh al I appoint three 111e111bers
for a tenure of two y ears, in order to ensure both continui ty and rotntion in the memhership or
the Board .

(8) Upon the ex piry of the perioci for which a member is appointed, they shall con tinue to
hold office until a successor has been arpnint ed. but in nll ca se sha ll such further period exceed
three months.

(9) !\member sha ll be paid such remunerati on or allnw<lnce as the l'vlini ster may from time
lo ti111e determine.

( I 0) Members shall have no direcl or indirect personal involvement in publi c procurement

runcli0n s during the period of th eir service 0 11 lhe Board .
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Termi11atiu11 of Ojjice of Board Memben

I LI. ( I) The Minister may, at any time, termi1wte the appointment of a member or the l3oard
for-

(a) abuse ofonice;

(b) corruption;

(c) incompetence;

(d) any physical or mental incapacity that renders n person incapable of performing the
duties of that office;

(e) failure to attend three consecut ive scheduled Board medings \·Vitho ut reasonable
grounds;

(f) conv iction of an offence involving moral turpi tude;

(g) being adjudged or declared bankrupt; or,

{h) nny other reasonable grou nd.

(2) Any member or the Board may resign lrom the Board by giving Jh)t k ss than one
month's prior notice in writing.

Meetings of the Board

15. ( I) The Board shal l meet as often as is necessary for the proper di scharge of its func tions
but in any event, not less than once every three months. The Chai rperson, in consultation with
th e Secretary, shall determine the times anti places for meetings and cal l meetings.

(2) In th e absence or the Chairperson the members present sha ll eke!, !1·0111 among their
number, an acting Chairperson.

(3) Subject lo this Act, th e Board sha ll regulate it s pro1;edure in the conduct ol'ils business.

(4) The valiJity of any proceed ings, ac t or decision of the Goard sha ll not be atfccted by
any vacancy in the membership of the Board or by any defect in the appointment of any
member or by reason that any person not entitl ed so to do took part in the proceedings.

(5) The quorum of the Board shall be three of th e members holding onice at that time,
except that when a member has declared an interest in an agent.la item , or in a malter before the
Goard, the member in question shall not be counted for the purpose of forming a quorum in
relation lo the item or matter in question.

(6) The decision of the l3oard sha ll be by a majority of votes or all members present, and
where th ere is an equality of votes, the Chairperson shal l have a casting vote in addition to a
deliberative vole.

(7) Notwi th standing the pro visions of subsection (6), a deci sion may be made by the Board
on any urgent matter by the circu lation of the releva nt papers among the members, and by the
expression in wri ting of the views of the majority thereof: provided that any member shall be
ent itled to require that any decision shall bi.: deterred until the matter is consickred at a meeting
of the Board.
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(8) T he Bonrd may invite any person. whose presence is in its opin ion desirable. to attend
and to participate in the deli be rat ions of n mce ti ng of the Board, but such person sh al I have no
vo te.

(9) The Board shall ca use minutes to be kept of the proceedings o f every meeting of the
Bomcl and of every meeting of any committee establ ished by the Board.

Committees ofthe Bonrd

16. ( l) The l3omd may, for th e purpose o f cnrryi ng out lh e fun cti ons of th e /\gency under thi s
/\ct. establi sh eom111ittecs and delegate to any such committee such of' I he Authorit y's function s
as it inny think fit.

(2) The B oard may nppoint as members of a committee estab li shed under subseclil'n 16.
persons who are or are no t members o f th e Goard and such persons shall ho ld o ffi ce for such
period as the Roard nrny determin e.

(3) Subject to any specific or general directi on o f the Romd. nny committee estnblishecl
under subsection ( I ) may regulate its own procedure.

Disclo.m re of Interest

17. (I) Where a member, or a close relati ve or close associate o f a 1ncmher. has, or intends to
acquire, a direct or indirect p ersonal interest in any agenda item or specifi c matter requiring th e
13onrd's cons ideration and decision, th e member shall-

(a) disclose such interest, as soon ns possible C1 0er recei ving th e ngenda o f th e meeting
of th e Board . or o n no tifi ca ti o n of n n1 alter being brought to the attention of t he
Borird: and.

(b) no t be present nt or pnrli c ipnte in th e deliberations or clecision - nrnking process or

lh e 13o;ird in rclnli on to th e agcncia item or the matter in question .

(2) A disc losu re of interest made under thi s section shnll be recorded in th e minutes of the
meeting. at which it is mnc.le or to which it relates.

AJJfJOi111111e111 and F1111ctio11s of F.tecutil'e Direct or

18. (I) There shnll he an Executi ve Director. who-

(a) shall he th e chi e f executive officer of the /\gency;

(b) be respo nsible to the Board for the management and o perations o rth e/\gency: and.

(c) serve as Sccrctnry of the B oard .

(2) Th e Executi ve Director shall he an officer in the rublic se rvice .

(3) T he Executive Director shall-

(a) be o f hi gh morn I c haracter and proven integri ty:

(h) h<1ve acceptable academic qualification and experience in procurement. law, commerce.
audit, investi ga tion. humnn resources development or any o th er related profession
releva nt to th e f1111ctio11 c:; or the ;\ gency: and.
 S65

(c) possess considerable experience i.lllJ Jcmon stratcd professional con1pc1ence in the
field of procurement and in the development and implementation or policy and
strategy.

(~) The Executive Director sha ll attend all meetings or the 13oard and :,hall be cnlitkd tu
address such meet ings, but shall not vote on any mailer under discussion . The Board may, for
good cause, request the Executive Director to withdraw from a11y meeting of the Board , bu t
such withdrawal shall be noted in the minutes of th e meeting.

Staflof t/Je Agency

19. ( I ) T he Agency shall be staffed by s11ch otht>r staJ'J~ in addi tion 10 the becutive Direclur,
as are necessary for the efficient and professional performance o f th e Agency's runc ti ons under
lhi s Ac t, includi ng pro secutors to enable the Agency to f'ulril its fun cti o11s and powers in
accordance with section s I O(c)(iv) and 11 (2)(h) .

(2) Public officers may be seconded 011 suc h rerms and conditions as may be decided in line
wit h government seco ndment po li cy.

Funds of the Agency

20. I he fund s of' the Authori ty shal l co nsisr or-

(a) money appropriated by Parliami::nl for the pm poses or 1he Agency;

(b) loans or gran ts received by the J\gency for its activ iti es;

(c) revenues co llecteJ from services that arc rendered by the Agency; and,

(d) any such other money received or made ::ivailable to lhc Agency for the purposes of
its !'unct ions.

Acco11111s anti Audit

2 1. ( I ) T he Agency shall keep proper books of account and other record s relating thereto and
shall prepare in respect of each financial year a statement of account and balance sheet showing,
in all necessary detail , the income and expend iture and the assets and liabilities of the Agency.

(2) The accounts of the Agency shall be aud ited annually by auditors appointed by the
Boi'!rd and a detailed report shall be submitted lo the Mini ster and to the f3 oard .

(3) The A uditor General shall review such audit report s and shall have access at al l reason<1ble
times to all books of accoun ts, records, re turn s, report s and other docum ents relat in g to the
Agency 's accounts.

rl mwa/ Ma11ageme11t Plan and Budget

22. ( I ) The Executi ve Director shall , not later than three months before the end of each financial
year, prepare and submit to the Board for its approval, a Management Plan , incl ud in g a budget,
setting ou t its objectives and planned activ iti es for the next year.

(2) The Executive Director may, at any time, prepare and submit to the 8oard for approva l
any estimates supplementary to the budget of the current financial year.
 S66

(3) Expenditure shall not be made out of the fund s of the Agency. un less that expenditure
is part of the budget or supplementary estimates approved by th e Board.

A nnual Report

23. (I) The Board shall, as soo n as practi cab le. but not later than four months afler the expiry
of e<1ch fin ancial year, submit to the Minister a report concerning the/\gency·s activ ities during
that fi nancial year.

(2) The repm1 shall be in such form as the Mini ster shall <1pprove and shall include-

(a) an evaluati on of the Agency's acti vit ies during that year, inc lu d ing performance
aga in st its plans and budget ;

(h) the Agency's audited finnn cinl statement s:

(c) information on the perform<1ncc and fun ctioning of th e public procurement system:
and,

(d) such ot her in formation as the M in ister may direct or <t s the Board may co nsid er
appropria te.

(3) The Minister shall cause th e report to be laid before Parliament within thirt y days after
receipt of the report, or withi n fourteen days oft he next sittin g of Parli ament, whichever comes
first.

PART Ill
TENDER BOARDS AND PROCUREMLNT J\ll'I I IORI SATIONS

Approvals Authorities and I'rocuremefll Authori.rntions

24. ( I) The function of the 8pprovals authority shall be to ensure that procurement is conduc ted
in accord ance with thi s A ct and public procurement regu lati ons by providi ng prior authorisation
o f specified stages of the procurement process in accordan ce with subsect ion 24(2) and publi c
procurement regu lations.

(2) Pub lic procu rement regulations shall delinc the stages or
lhe procurement process
whi ch require the prior auth orisation of th e relevant approvals au thority.

(3) The appro va ls authority shall he the-

(a) cont rolling o ffi cer or Chi ef Executi ve Officer. where the value of the procurement
does not exceed th e level of autl10rity speci fied in public procurement regulations:

(h) appro pr iat e Entity Tender 8 oa rd , w here so estab lished in acco rd ance wi th section
27 and where th e v8luc of the procurement does not exceed the leve l or authorit y
gra nt ed in acco rdnn ce w ith section 27(3): or.

(c) Government Te nder Board estab li shed un der secti on 25. or any appropri ate sub
com mittee establi shed in acco rdan ce wi th sec tion 27(3), whe re the va lue of th e
prorn remcnt exceeds the l evels of authori ty of all lower approva ls authorities.
 S67

Estab/ishme111 a11d Co111posW011 of Swaziland Gol'ernme11t Tender Board

25. (I) !'here is hereby estab lished th e Swut:iland Government render Ooard , w hich shall be
the highest approvals authority for th e Government of Swazi land .

(2) The Government Tender Board shall have an unlimited level of au th ority, but shall have
no authority over any procurement which fa lls within th e level of auth ority of any subsidiary
Tender Board or officer.

(3) The Government Tender Board shall be composed of-

(a) a Chairperson w ho shall be a person \Vi th a minimum degree quali lka1 ion and of
high repute;

(b) the Principal Secretary, Mini stry or Economic Planning and Developmen t or a
representative;

(c) the Principal Secretary, Ministry o f Public Works and Transport or a represen tative;

(d) the Pr in cipa l Sec re tary, Mini st r y of C ommer\.:e, Indu str y an d Trad e or a
representative;

(e) the Principal Secretary M ini stry or Finance or a representati ve

(f) a representative or th e A tt o rn ey Genera l's Onice;

(g) two representatives fo rm the pri vate Sector; and ,

(h) th e Head o f' th e Tech ni ca l Secretariat, who shall be Secretary, bu1 shall not have a
vo te.

(4) The two members referred to in subsecti on 25(3)(g) shall-

(a) be appointed by th e Minister, in co nsultation with the Ca binet, for a peri od not
exceeding two years and shall he entitled lo re-appoi ntment ; and,

(b) not participate as tenderers in pu bl ic procurement during the peri od ol'their service
on the Government Tend er Board .

(5) Where the M embers have voted upon a matter and the votes are 1kd , the Chairperson
shall have a casting vote .

(6) A member may nominat e a alternat e to attend a meetin g of the Governmen t Tender
Board, or any subcomm ittee establish ed in accordance with section 26, on their behalf.

(7) T he Government Tender Ooard may co-opt advisers to provide spec ific advice to assist
it in th e discharge of its function s whom-

(a) shall not vote on any submi ssion; and,

(b) shall on ly attend the part o f the meeti ng on w hich th eir advice is required .

Sub-Committees of the Government Tender Board

26. ( I ) The Government Tender Board may establish subcomm ittees to-
 S68

(a) conduct particular functions of the Government Tender Board, such as the opening
of tenders;

(b) provide prior authorisations under delegated authority from the Government Tender
Board up to a level of authority specifi ed by the Government Tender Board: or.

(c) approve sources of supp ly for common use items.

(2) Notwithstanding subsection ( I), the Government Tender Board shall rema in responsible
and accountable for the activities of any subco mmittees.

Establisltment ofEntity Tender Boards nnd Levels ofA 11thori(v

27. (I) The Agency may authorise a procuring entity to establish an Entity Tender Board .

(2) An Entity Tender Board sha ll act as the approvals authority for all procurement
conducted by the entity, whether for itself or on behalf of another requesting entity, which fall s
within the level of authority granted in accordance with subsection (3) and all procurement with
a va lu e above this level nf authority shall be submitted to the Government Tender Boflrd for
prior authorisfltion .

(3) The Agency slrnll grnnt levels of auth ority, whi ch slrn ll be determined by the capacity
nnd \·Vorkload of each en tity.. for each Entity Tender Board established by issue of circulars.

(4) The Agency shall assess the procurement capaci ty and \\'nrkloacl of e<'lch entity to
cl etermine-

(a) the need for an Entity Tender 11oard. takin g into account the procurement workload
of the rntit y:

(b) the procurement capacity of the entity. takin g into account th e ca pa city of both the
Ent ity Procurement Unit and the cmrent or rroposed members of the Entity Tender
Board: and.

(c) the <1prropriate leve l or aut hority for the Entity Tender 13oard.

(5) The Agency sh<lll also adv ise the cnt ity of the findings of it s capacity nssessment and
any actions needed to improve procurement capacity.

(6) The/\11thnrity shal l agree it s work programme and methodology fnr capacity assessments
with the Government Tender Bonrd <lnd shall keep th e Government Tender Roard informed 01·
nll <lssessment findings and levels of authori ty issued.

(7) A procuring entity which has implemented measures to improve its capaci ty may
request th e Agency to rev iew its capacity and level of' authority and the 1\ gency shall undertake
suc h rev iew as soon ;:is possibl e. but in no case l<1ter than three months from the date of the
requ est.

Composition and Appoi11t111e11t r~( E11ti(v Te11der Boards

28. ( I) t\n Entit y Tender Board shall be composed of-

(a) a chairperson nppointed by the co ntro lli ng officer or Chi ef Executi ve Officer, who
shnll be of<l lcve l not below Under Secrct<lry, Director or equ ival ent level or slrnll be
a 111ember of th e procuring ent i1y·s senior 1nanagernen t team:
 S69

(b) belween two and four other members appointed by 1he controlling offi cer or Chief
Execut ive Officer in accordance with subsecti on (2); and,

(c) the head of the entity's Procurement Uni t, who shall be Secretary, but shall not have
a vo te.

(2) ln appointing members of an Ent ily Tender Board, the controll ing officer or Chief
Executive Officer shall ensure that members-

(a) are of an appropri ate level of sen iority and experi ence in decision making;

(b) are appoin ted wi th d ue regard to their technical competence and the sk ill s <lnd
knowledge req uired for the discharge of the fu nctions of the Entily Tender Board;
and,

(c) provide a balance of sk ill s and ex perience across th e Enlity TenJcr l3oard.

Meerings <if Tender BoardJ

29. ( I ) A Tender Board shall meet as o l'len as is necessary for the proper anti limely review and
aulho r isati on o f procurement requiremen ts with i n it 's auth oril y and the Chai rperson, in
consultation with lhe Secretary, shall determine the times anti places for meetings and call
meetings.

(2) ln the absence of the Chairperson the members presen t shall elect, from among their
number, an act ing Chairperson.

(3) The quorum of a Tender Board shall be one-half of the members holding oftice at that
time; except that when a member has dec lared an interest in an agenda item, or in a matter before
the Tender Board, th e member in q uesti on shall not be counted fo r the purpose or forming a
quo rum in relation w the item o r matter i n questi on.

(4) The decision of a Tender Board shall be by a majority o f vo tes, and where Lhcrc is an
eq uality of votes, th e Chairperso n shall have a cas ting vo te in add it ion to a del iberntive vo te.

(5) A Tender Board shall co nsid er each submi ss ion made, based on the i1do rr11ation and
supporting documents contained in the submi ssion and shall app rove or reject euch submission ,
but sha ll not vary a recommendati on subm itted, particul arly a co ntract award recom mendation .

(6) Where a submission is r~j ect ed, a Tender Board shall state irs reasons in writ ing. A
rejected submi ssion may be re- subm ilted, fo ll owing correction o f the reasons ll.>r its rejection.

(7) ATender Board may give a cond itional approva l to a submi ssion, where th ere is a minor
iss ue to be reso lved.

(8) A Tender B oard may co-opt advisers to provide speci fi c advice lo assist it in the
discharge of its func ti ons, but an advi ser shall not vote 011 any submission and sha ll on ly atten d
the part of the meeting on whi ch their advice i s required.

(9) Observers, includ ing represenrat i ves of the Agency, may auend a meeting of a Tender
Board, where so agreed by the Tender Board but shal l not vo te on any submission.

( I O) A Tender B oard shall cause minut es to be kept of the proceedings o f cvery meet ing of
the Tender Board, which shall record at least-
 S70

(a) the members present al lhe meeling:

(b) any advisers or observers attending the meeting:

(c) any di sclos11re of int erest made in accordance w ith section 30:

(ct) all submi ssions considered and whether the submi ssion was <lpproved or rej ected;

(e) the reasons for rejection of any submission and any condition s l o appro ved
submi ssions: and,

(f) th e key issues discussed in relation to each submission. includin g any <ldvice given
or di sagree ment hetween the rnemhers.

( 11) Minutes <lnd decision s of a Tender 13oard shall be available and di stributed w ithin two
workin g days of the Tender Board mecling.

( 12) J\ decision may be made by a Tender Board on nny urgent matter by the circulation of
the relevant papers nmong Lh c members, and by the ex pression in writing of the views of th e
majority thereof: pro vided that nny member shall be enlill ed to require th at any decision shall
be deferred until th e matter is considered nt n meeting of the Tender Bonrd .

Di.<;c/o...ure of Interest

30. ( I ) Where a member, or a close relati ve or close associate of a member, has, or intends to
acquire, a direc t or indirec t personal interest in any agenda item or specifi c m;itler requiring a
Tender Board 's consideration and decision. the member shall -

(a) di sclose such int erest. as soon :is possible a Iler recei ving lh e agend a o f the meeting
oflhe Tender Bo nrd . or on notilication of n 111a tte r being brought to the attention of
the Tender T3oard : anti.

(b) not be present al or parti cipate in lite deliberations or decision-111aking process 01·
th e Tender Board in rel<ttion to the ngenJa item or th e nrnlter in question .

(2) A disclosure of intcresl made under thi s section shall be recorded in the minutes o f th e
meeting at which it is made or to which it rclntes.

PART IV
T[CllNI CJ\J, SEC IU-::TJ\RIJ\T /\ND RES PONS IRIU rws FOR PROCU REMENT

Respo11sibili~11 for I'romrement Acti11ities

31. (I) Public procurement r<:'gulations shall define the procuring entity responsible for different
lypes and values of procurement. according lo the following principles-

(a) certain specia li sed items or categories of procurement slrnll be purchased solely by
<l des ignnt ed lea d procurin g rntity w ith l cchni c;il or sector ~ pcc ifi c ex perti se:

(b) common use items shall be purchased ce ntrally on behalf of all procuring entilies by
one or more dcsignnted lend procurin g enl il ies:

(c) items ot her than tho se in (a) and (b) may be purchased d irectly by the requesting
entity. providing the estimated va lue does nnt exceed lhe monelary threshold for
the entity spec ifi ed in accordance with subsections (3) and (4); nnd.
 S7 1

(d) all o ther items shall be purchased by th e Technica l Secretariat or <1 procuring ent ity
designated by the Technical Secretariat.

(2) Publi c procurement regul ations may sr eci fy altern ati ve responsibilities for cen tral
government hodi es, public enterprises and loca l governmen t auth ori ties.

(3) Th e monetary threshold spec ifi ed in subsecti on (c) shall be d etermin ed by the
procurement capacity of the req uesting entity, but shall be no less than the level of au thority of
the controlling officer or Chief Executive O ffi cer in accord ance w ith section 2-1 (3)(a).

(4) The monetary threshold spec ifi ed in subsection (c) shall be issued by the A uth ority.

Establishment ofthe Technical Secretariat

32 . (I) There shall be estab lished w ithin th e Mini stry of Finance a Technical Secretariat.

(2) The Techni ca l Secretari at shall be responsi ble for-

,

(a) the management of designated procurement activities as a lead procurement

organi sati on in accordance w ith section 3 1; and,

(b) providing secretarial serv ices fi.ff the Govern ment Tender Boa rd.

(3) T he Techn i cal Secretari at shall be staffed by professi onal procurement staff wi th
appropriate trainin g ancl ex perience in procurement and may hire such e:-:perti se as req uired
from time lo time.

(4) T he head of the Technical Secretariat shall be secretary to the Governm ent Tende r
Board, but shall not have a vot e.

F1111ctio11s of the Tecl111ii.:a/ Secretariat

33. The functi ons of the Technica l Sec retari al shall in clude-

(a) all functi ons of a procuring entity, in accordance w ith sect ion 34, for rrocuremcn t
for whi ch it is designal cd as responsible;

(b) providing support lo th e Government Tender Board in managi ng the lender ing
process, incl uding th e receipt and opening or tenders;

(c) review ing al l requests for pri or authorisati on, prior to their s11bmiss io11 to lhe
Government Tender I3oa rd ;

(cl) providing secretarial services to the Government Tender Board, including rreparation
of agendas and minut es, distri b uli on of lender doc uments and not ification ol'Tcn der
Board decisions to procuring entities;

(e) coo rdinating Governmen t w id e procurement planning; amt,

(I) coordin ating act ivities relating lo the procurement or common use items in accordance
w ith section 37. ·
 S72

F1111ctio11s of Procuring Entities

34 . (I) The fun ctions of the procuring entity designated ns responsible fo r any procurement in
accordance with secti on 3 1 shall includ e-

(a) pre paring indi vidual procurement plans where appropriate;

(b) develo pin g statements of requirements where a ppro priate;

(c) recommending th e appropriate method of procurement :

(d ) prerarin g in vit ation document s. ad vertisements ;:i nd shortli sts:

(e) provid ing techni cal input s during the procurement process, including to pre-bid
meetings nnd clarifications, or obtainin g technical inputs from appro priately qualifi ed
persons:

(f) leading the evaluati on of tenders and preparation of eva luati on reports, includ ing
contract nwnrd rcco111rnendati o11s:

(g) preparing con lrnct docum ents and amendment s:

(h) managing contracts, in cluding suppli er perfornrnnce, where arpro priate: and,

(i) providing rep0rt s on rrocmemenl as may be req uired.

(2) The proc uring entit y shall -

(a) li'1 ise wilh the requesting ent ity throughou t the procurement process:

(b) obtain technicn l inputs nnd ad vice. where req11 ircd. fro111 thc req uesting ent ity: and.

(c) include re present ati ves of the requestin g entit y an d/or end user of" the goods. works
or services o n the eva luation committ ee.

Enti~v Procurement Units

35. ( 1) Where its procurement workload is sufficient. a procuring entity may es tab lish an
Entity Procurement Unit, which shall be responsibl e fo r nrnnaging the procurement acti vities of
the proc urin g entit y in accord'1 nce with this Act.

(2) Jn parti cul ar, the functions of an Entity Proc urement Uni t shall include-

(a) performing the fun ct ions of the procurin g en lily in accordance wit h sect io n 34; and,

(b) obtai nin g all recp1irecl approvn ls fro m the ap propriate ap prova ls a11thorily.

(3) A procurin g entity shall lwvc an Ent ity Procuremen t Unit in order to-

(a) act as a lead proc uri ng entit y in accorda nce with section 3 l(a) or 3 1(b); or.

(b) estab lish its own Tender Board in accordance wilh section 27.

(4) /\ n En tity Procuremen t Unit shall be staffed by professional prorn rcment staff wi th
appro pri ate tra ining. mid experience in procurement and 111ay hire such expertise as requ ired
from ti me lo Lime.
 S73

Fu nctions of Requesting Entities

36. The functi ons of req uesti ng ent iti es, in relation to pub lic procurement, shall include-

(a) prepar ing an an nua l procu remen t plan and providing information 011 forecast
procuremen t requ irements to th e Technical Secretariat;

(b) initiating procurement req uirements and obtaini ng all necessary authorisations for
the commitment of fun ds;

(c) preparing statements of requirement s for the goods, works or serv ices requ ired;

(d) parti cipating in the evaluatio n of tende rs an d prepan.i li on or evaluation reports as

members of the evaluati on co mmittee in accorda nce wi th sectio n J4(2)(c);

(e) managing contracts, in cluding supp lier performance;

(f) liaising with and providing all required in formation to th e designated procuring
entity or ent ities throughout the procurement process; and,

(g) providing procurement report s as may be requ ired.

Procuremelll ofCommon Use Items

37. ( I) Commo n use items shall be purchased centra lly on behalr of all request ing entities, or a
gro up of requesting entities, by one or mo re lead procuring entit ies designated in accordance
with secti on 3 1(b).

(2) Commo n use items shall be any goods, works or services requi red by more than one
req uesting entity, for whi ch the Government can obtain greater effi ciency and value for money
thro ugh cent ra lised purchasing.

(3) The Technical Secretari at shall determine which goods, works or serv ices are common
use items and shall regularly distribute a list of items designated as common use items, the
designated lead procuring enti ties aml lhe requesting entities fo r whi ch they are purchasing.

(4) The lead procuring entity fo r any common use items -

(a) shall liaise with all requesting entit ies, as part of the an nual procurement plan ning
process and on an ungoing bas is, to establish a detail ed li st of common use items and
estimated needs;

(b) may evaluate sup pliers for common use items in order to issue a li st or approved
sources of supply;

(c) may enter into framewo rk contracts or other app ropriate contractual arrangements
for th e purchase of common use items;

(d) may util ise wareho uses for cost effect ive storagi; and distribution of common use
goods; and ,

(c) shall issue regul ar ly updated in fo rmati on to all req ues ti ng en tities on the items
avail able, prices, deli very times and arrangements established fo r ordering or obtaining
such it ems.
 S7t!

(5) /\ rcciuesting ent ity sh<ill utilise approved sources of supply or fram ework con trac ts to
obtain common use items in accordance wi th in structions issued by the lead procuring ent ity.

PART V
PROCURP.MENT PRINCIPLES. METll ODS AND RlJLES

Proc11 r em e11t Pri nciple.'I

38. A ll procurement shall be conducted in a nrn nncr wh ich pro motes economy. emc iency.
transparency. accountability. fairness, co mpetition and va lue for money.

Non Discri111i11atio11 and M easures to Promote Swazi Companies

39. ( I ) A tenderer shall not be excl uded from participating in pub lic procu rement on the basis
of nationality, race, religion, gender or any oth er criterion not related lo i ts el igibi lity or
ciucilifi cations. except to the exten t provided for in this /\ct or public procurement regu lat ions.

(2) Notwithstand ing the provisions of sub-secti on (I), the Government, through Regulations,
shall. with a view to promoting economic capacity and the competitiveness o f husinesses in
Swaziland, initiate measures to facilitate par1icipation by Swazi companies in publi c procurement.

(3) Such measures, including but not limited to preferences in the evaluation of tenders and
proposals, may be specified in public procurement regulations.

Supplie r Eligibili~11

40. ( I ) In o rder to be eligibl e to participate in public procurement, n tc11dcrer shall demon strate
to the safi sf<lcti on of the procuring entit y that -

(a) it has the legal capacity to enter into the contract:

(b) it is not insolvent, in receivership. bankrupt or being wound up, its affa irs are not
being administered by a court or ajudicial officer, its busi ness ac ti viti es have not
been suspend ed, and it i s are not th e subj ect o f lega l proceedi ngs fo r any o r Lh e
foregoing:

(c) it has fulfill ed its ob ligations to pay taxes and soc ial security conlributions:

(d) it adheres to basic labo ur legislation ;

(e) it does not haven co nni ct or interest in re lation to th e procurement requiremen t;

(f) it, or any of its directors or officers. have not been co nvi cted of any criminal offence
relating Lo professiona l conduct or the making of fa lse state men ls or misrepresentations
as to its ciualifica tion s to enter into a procurement contract within a period of five
years preceding the commencement o f rrocurement proceedings: and.

(g) it is not subj ec t lo suspen si o n in acco rd an ce w ith secti o n 55. and no ne orits
directors or officers have been in vo lved in a tend erer or suprl icr currently subject to
suspension.

(2) /\!I in vi tation documents shall slnte the el igi bilit y requirements and specify any
documenlary ev id ence required as proo f of eli g ibili ly.
 S75
Supplier Q11aliflcatio11s

I. ( I ) A procuring entity may require biJdcrs to meet such qualification criteri a as the procuring
--1
entity considers appropriate to a parti cular procurement requirement, to Jemonstrate that it
has th e capability and resources to effecti vely perform a contract.

(2) Any qualification criteria shall be specilieJ in the in vitation document anti may relate
to-

(a) professional and techni cal qualilkati ons;

(b) finan cial reso urces and co11dition;

(c) equipment and other ph ysical faciliti es;

(d) personn el and manageri al capab ility;

(e) record of past performance of simil ar contracts; or,

(f) regi stration or licensing w ith lhe releva nt profess ional body in Swaziland or in the
tenderer 's country of origin where so required by law.

(3) Invit at i on documents shall state any qualifi cation requirement s and spec ify the
documentary evidence or information required to demonstrate the tendercr's qua lifi cations.

Proc11reme11t M ethods mu/ Process

42 . ( I) A procuring ent ity shall use one or the meth ods specified in th e public procurement
regulations for all procurement.

(2) T he preferred methods of procurement shall be-

(a) open tenderin g for goods, works and non -co nsulting ser vices; and,

(b) request for proposals for co nsulting services,

and other methods shall only be used where the procurement meets the conditi ons for use of an
alternative method speci fied in the publi c procurement regulations.

(3) All procurement activities shall be cond ucted in acco rdance with th e detailed ru les
spec ified in public procurement regulation s.

Procedures for procurement ofinfrastructure 011 the basis ofprivate fi11a11ci11g a11dfor award
of concessions

43 . (I) Contracts for the construct ion amt/or operation of public infrastructure and other pub lic
goods on the basis of private in vestment, and cont racts for serv ice concessions, shall be awarded
in accordance w ith the principles and objectives of thi s Act and Government po licy.

(2) Specia l methods and procedures for the impl ementation of subsection (I) may be
specified in regulations.

General Procurement Rules

44 . Requesting and procuring en tities shull -

 S76

(a) maintain records of all procurement proceedings:

(b) ensure tlrnt all communications with tenderers and suppliers are in writing:

(c) keep confidential the information that comes into their possession relating to
procurement proceedings:

(d) plan their procurement in a rationale manner:

(e) document requirements and obtain authorisation before initiating procurement

proceedings;

(f) define their needs in a statement of requirements which gives a correct and compl ete
description of the goods, works or serv ices and use lhis in in vitation docu ments.
eva luation and contracts;

(g) use the appropriate st<1ndard documents issued or authorised by the /\gency in
accordance with section 1O(b)(iii):

(h) clearly stale the methodology and criteri<1 to be used in the evaluation of tenders and
the determination of the best evaluated tender: and,

(i) comply with such other rules as are speci fi ed in thi s Act and public procurement
rcgu lations. ·

Co11trnct Award Procedures

45. ( 1) The awarding of con tract shall be recommended to the best ev"luatcd tenderer. as
determined by the eva luation methodology and crit eria specified in the invi t<1t io n document.

(2) The contn1ct award decision shall be taken by the nppropriate approvals authority. but
the award decision does not co nstitute a contrnct.

(3) following the contrnct nward deci sion. th e procuring enti ty sha ll prepare a notice
indicating the name of the best eva luated tenderer. the va lue of the proposed contract and any
evaluation scores. The noti ce shall be-

(a) sent direclly to all tenderers who su bmitted lenders by letter and,\\ here appropriate,
by tax or ema il ; and,

(b) published on the Government 's public procurement websile.

( 4) !\ procuring entity shal 1 allow a period or at least ten worki ng days to elapse from the
dnte of despHtch <111d publication or the notice in nccordnnce with subsection (3) before a
contract is awarded.

(5) The pro visions of subsections (3) and (4) sh<1ll not apply -

(a) w here the vn l uc of the procurement does not exceed th e threshold specified in
publi c procuremenl regul<1tion s: or.

(b) in nny Pt her eirc11111stnnces specified in public procurement regul"tions.

 S77

PART VI
ADMINISTRATIVE REVIEW AND SUSPENSION OF TENDERERS AND
SU PPLIERS

Right to Review

46. ( 1) Any tenderer that claim s to have suffereJ, or that may surfer, loss or injury due lo a
breach of a duty imposed on a procuring entit y by thi s Ac t or publi c procurement regulations,
may seek rev iew in accordance with sec 1ion 47.

(2) A tenderer seeking re view may be required to pay a fee, in accordance w ith pub li c
procurement regulati ons.

Review by Procuring Entity

·47. ( I) An applicat ion for review slrnll , in the first instance, be submilled in \Hi ting to the
con~rol ling officer or Chi ef Executi ve Onlcer of the procuring entity conJucting the procurement.

(2) T he controlling o ffi cer or Chier Executi ve Officer or the procuring enlity sha ll not
entertain an application for re view, unless it was submitted within ten worki ng days of when
the tenderer submitting it became aware of the circumstances giving rise to the app li cation for
rev iew or o f when that tend erer should have become aware of those ci rcumstances, whichever
is earlier.

(3) Despatch and publication ofa notice indi ca ting the bes! eva luated tenderer in accordance
with section 45(3) shall be deemed to sat isl')! th e requirements of awareness in subsection (2).

(4) Unless the application is di smi ssed or resolved by mutual agreement of the tenderer
that submitled it and the procuring entity, the co ntrolling o ffo.:cr or Chi ef Lxccuti vc Orficer or
the procuring entity sha ll-

(a) immediately institute an investiga tion;

(b) ensure that no contract award is made prior to complet ion of the review process;
and,

(c) issue a written decision, within ten \·Vorkin g days after the submission of the
appli cation .

(5) The decision shall state-

(a) whether the application is upheld, in whole or in part or dismissed;

(b) the reasons for the decision ; and,

(c) any corrective measures that are to be taJ...en.

Right to Administrative Review

48. (I) Where-

(a) the controlling officer or Chief Executive Officer docs not issue a decision w ithin
the peri od speci fi ed in section 47(4)(c) ; or,
 S78

(b) the tenderer is not sa ti s fied with the decisio n of the co ntrollin g officer o r Chi er
Executive Officer:

a tenderer may seek administrat ive review in accordance with section 49.

(2) A tend erer seeking administrative review may be required to pay a fee, in accordance
with public procurement regulations.

Administrative Review Procedures

49. ( 1) An application for administrntive review in accordance with section 48. shall be submitted
in writing to the Agency.

(2) The Agency shal l not entertain an application for administrative review, unl ess it was
submitted within ten working days of the date of issue of the control ling officer or Chief
Executive Officer 's decision or the date by which the control ling officer or Chief Executive
Officer should have issued a decision.

(3) Upon receipt of an application for administrati ve rev iew. the Agency sha ll-

(a) immedintely give notice or the application to the procuring enti ty:

(b) prohibit the procuring entity from awarding a contract pri or to completi on or th e
administra ti ve review process: and.

(c) estab Iish an Independent Review Committee i11 nccordan ce with section 50. whi ch
shall in vesti gate m1cl decide on the application in nccorda ncc with secti on 5 1.

Co11sfit11fio11 <~( a11 lndepe11rle11t Re11iell' Committee

50. ( I) For the purposes of hen rin g appli cn tions for nd111inistrntive review and appea ls again st
suspension, the Authority shall constitute n standing rev iew panel.

(2) The standing rev iew panel shall consist or members of high integrity with ex perience in
publi c procurement or related nelds, but wit h no direct or indirect persona l invo lvement in
publi c procurement fun ctions during the period o r their service on the standin g rev iew panel.

(3) for each application for administrative revi ew or appeal against suspension, theJ\gency
shall constitute nn Independ ent Review Com mittee, composed of three members of th e standing,
review panel.

(4) In se lect ing members for an Indepe nd ent Review Commit tee. the Agency sha II seek to
establish a balance of relevant knowledge and exper ien ce among members to ensure that the
Ind ependent Rev iew Committee has both-

(a) knowledge and experience of tlir nrplicahle publi c procuremen t rules; and ,

(b) teclmi cn l know ledge oft he subject of the contrnct.

(5) The Agency shall designat e staff to pro vide sec retarial services to the Ind epend ent
Committee, but no 11oard members or stnff or th e Agency shall be in clu ded 0 11 the
l ~ev i ew
standing review pan el or se lected as a member or nny In dependent Review Commi ttee.

(6) The lndr.pcndent Rev iew Committee may engage technical specia li sts to ass ist in its
work if so rcqu ired.
 S79

(7) The members or an lndepenJcnt Review Comrnillee, techn ical special ists and staff
providing secretaria t services shall be required to declare that they have no conflict of interest
in relation to the appli cati on being heard .

(8) The members of an In dependent Review Committee shall be paid si tting al lowance and
travelling allowances as are paid to the members of the governing body ofa category A, Gro11r
I public en terpri se.

Administrative Rel'iew by lmlepe11de11t Rel'iew Committee

51. ( I) Unless the application is di smi ssed, the Independent Review Commi ttee shal l-

(a) immediately institute an in vestigation; and,

(b) i ssue a wri lien decision, w ith i 11 fi lteen work ing days an er the subm ission of the
application.

(2) In condu ctin g its investi ga ti on, the Independ ent Rev iew Committee shall have !he
power to-

(a) access any information, documents, record s and reports in respect of any aspect of
the procurement process subject to th e in vestiga ti on; and ,

(b) summon w itnesses and examine witnesses and parti es concerned.

(3) The decision sh<Jll state-

(a) w hether the applica ti on i s upheld, in whole or in part or di smissed;

(b) the reasons for the decision ; and ,

(c) any correcti ve measures th at are to be taken or rem edies ordered in accordance wilh
secti on 52.

Remedies by lndepe11de111 Review Commillee

52. ( I) T he lmkpendent Revi ew Com miltee may gra nt one or more of1he fo llowi ng remedies-

(a) prohibit a procuring entity from acting or dec iding unlaw full y or from following an
unlawful procedure and require the procuring entity to act or to proceed in a law tl.tl
manner or to reach a lawful deci si on;

(b) annul in whole or in part or rev ise an unlawful act or decision of the procuring entity
or substi tute its own decision for such a decisi on, other tha n any act or decision
bringing a contract into force;

(c) require th e payment o f co mp ensation fo r any reaso nab l e costs inc urred by the
tenderer s11bmi1ting the complaint in connec tion w ith the procurem ent proceedings
as a result of an unlawfu l act or deci sion of th e procur ing enlity;

(d) order that th e procurement proceedi ngs be terminated ;

(e) recommend to the procuring entity that a contract be terminated ; or,

(f) recommend 10 the Agency that spec i fic action be taken in cludi ng prosecut ion.
 S80

Notification to other Bidders

53. (I) Promptly a~er the submission of an application for administrative review, the/\gency
sha ll notify all tenderers who participated in the procurement proceedings to which the
application relates of the submission of the application and of its substance.

(2) Any such tenderer or any other party whose interests are or could be affected by the
review proceedings has the right to participate in the review proceedings.

(3) /\.tenderer who foils to participate in the review proceedings is barred from subsequently
making the same type of claim .

Proltibitio11 011 co11tract award rl11ri11g review proceedings

54. (I) Where a procurement req uirement is subject to -

(a) review in accordance wi th section 47. no contract shall be awarded until ten working
days af1er comp leti on or the review process: or.

(b) administrative rc,·iew in accordance with section 49. no contract shall be awarded
prior to comp letion of the admini strati ve rev iew process.

(2) Notwithstanding th e provi sion s of subsecti on 54. where urge nt public interest
co nsiderations require goods, works or services to be contracted, the Government Tender Board
may authori se mi award o r contract or an extension to an existin g co ntract prior to complet ion
of the rev iew or admini strative review process. Such award shall be limited to the quantity of
goods. works or services required to meet urgent needs during the time period for co mpl etion or
the review or ndministrati,·e review process.

(3) Where n procuring entity seeks a co11tracl nwn1d 111 extension in ncco1dancc wit h subsection
(2). it shall prepnre a submi ss ion to the Government rend er I3oard which-

(a) states that urgent publi c int erests require a contrnct award or ex tension:

(b) justifies the g round s for claiming urgent public interests:

(c) specifies the q ua nt ily of goods. works nr services req uired to meet urgent needs:
and.

(d) rcco111111e11cls the tenderer or suppli er to whom the co ntract or extensio n is lo be

avvarded.

(4) The submi ssion shall be made a part of the record of the procurement proceedings and
shall be copied to the controlling officer. Chief Executive Officer or Independent Review
Committee respon sibl e for the rev iew or admin istrative re view.

S11spe11sio11 of Tenderers and Suppliers

55. ( l) The.l\gency nrny suspend a tenderer or supp Iicr rrom participation i11 public procurement
on the grounds specifi ed in sect ion 56.

(2) A tenderer or a supplier shall not be suspended prior to-

(n) reasonable noti ce in writing to th e tenderer or suppli er involved of the grou nds for
the proposed susprnsion and tile details or1'1e nlkgecl 12-rounds:
 S8 1

( b) reasonabl e oppor1unity fo r the tenderer or suppl ier to respond to the nlkged grounds
and prov id e in for mation in it s defence; and,

(c) a thorough in vestigation or th e facts or th e case by the Agency.

(3) A ny suspension shall be fo r a minimum peri od or one year and a 1m1xi111um per iu<l or
ti ve years.

(4) A suspension in accordance with subsecti on (I ) may also apply to name<l d irec tors,
shareho ld ers or staff of a tenderer or suppli er, where th e in ves tigati on demo nstra tes the
invol vement of such individuals.

(5) Wh er e an in vesti gati o n into a tende rer o r supp lier causes the Agency to suspect
misconduct or breach of th is Ac t by a pu bli c officer o r pol iti cian, such susp icions shal l be
referred to th e appropriate auth orit y lor l\ 1rther investigat ion.

,(6) Notw ith stand ing the prov isions o r subsection (2), any tenderer, supplier or person
end orsed on the Register fo r Tend er D efaulter s in accordance with the Prevention or Corrupt ion
Act, 2006, shall automati cally be suspended from part icipati on in procurement.

(7) N otwithstanding the pro vi sio ns o f subsecti on (3), the suspension shall be fo r th e fu ll
duration o f the time th e tender, supplier o r perso n is endorsed on the Register.

Gro1111ds for S11spe11sio11

56 . A tend erer or supplier may only be suspended from parti cipation in proc urement on the
foll ow in g grounds -

(a) kn owi ng provision of fal se informati on in a tender or ciny other document subrnill ed
to a procuring entity in connecti on w ith a procurement process o r contract;

(b) conni vance to interfere with the partici pa tion o f ot her tendt.:rers;

(c) mi scondu ct relat ing to th e submi ss ion o f tenders, in cludi ng corrupt, fraudu le nt ,
collusive or coercive practices, price fi x ing, a pattern of under-pri ci ng of tenders and
breach of confidentiality;

(d) takin g an order knowin g that the ord er had not been authori sed or was not in a
proper format or had been issued by a person not authorised to do so;

(e) makin g deli very against an order know ing that the ord er had not been auth ori sed or
was not in a proper form at or had been issued by a person not authori sed to do so;

(1) makin g a claim for paym ent aga inst an ord er kn owing that the order had not been
authori sed or was not in a p ro per fo rm at or had been issued by a pe rso n not
authori sed to do so;

(g) refu sal to sign a contract or to fu rn ish a per fo nnance security in accordance w ith the
terms of the in vitatio n doc umen t and tender if requ ired to do so;

( h) substantial non-pe rfo rm ance or

cont rac tu al ob li gatio ns, provided th at th e non-
perform ance was not du e to circumstances beyond th e cont ro l or the supp l ier;

(i ) conviction ora criminal o ffence relatin g to obtainin g or attemptin g to obtain a

contract or subco ntract; o r,
 S82

(j) conviction of <t cr im e related to busin ess or professional activi ti es.

Appeal against Suspension

57. (I) A tenderer or suppl ier may appe<tl against a decision lo suspend the tenderer or supp lier
from participation in public procurement by submitti ng an appeal in writing to the Agency for
rev iew by an Independent Review Commillee.

(2) The Agency shall not entertain an appeal unless it was submitted wi thin ten working
clays of th e date of issue of the suspens ion notice by the Agency.

(3) For the purposes of hearing such appeals the Agency sha ll consti tute an Independent
Review Commi ll ee composed of three members of !he stand in g review panel selected in
accordance with section 50(3).

(4) The Independent Review Commit tee sha ll-

(a) immediately review the origi nal investig<ttion and decision by the Agency: and.

(b) issue a written decision, w ithin fifteen working days <tfter the submission of the
appeal.

(5) In conduct ing it s review. the Independent Review Committee shall have the power to-

(a) access any infonm11ion. documents, record s and report s in respect of any ;i specl of
the procurement process or contract: and.

(b) summon w itnesses and exmnine witnesses and pnrli es concern cci.

(6) The deci sion o f the lnciependen t f{eview Co mmittee shall state-

(n) whether the suspension is uph eld or overturn ed or the period or !he suspension or
nnmed individu;ils revi sed: and.

(b) the rensons for the decision .

(7) A tenderer or supplier seeking lo appeal ag<t i11 st suspension may be required lo pay a
fee. in accord;incc with public procurement regulation s.

(8) Where rm investi gat ion into a tenderer or supplier causes the Independent Review
Commillee lo suspect mi sconduct or breach of thi s Act by a publi c officer or politician, such
suspicion s shall be referred lo the appropriate authority for fu1ih er in veslig<tlion.

Legal Representation

58. /\tenderer or supplier who appeals in lerrn s of thi s Part . shall lrnve the right lo be represent ed
by legal counsel in the l'lppe;il proceedings.
 S83

PART Vil
CODES OF CON DUCT, orrENCES AN D PLNALT!l:S

Codes of Comluct

59. The Agen cy may promulga te codes o f co nduct to guide the behav iour of pub l ic officers,
po liticians, tenderers and suppliers invo l ved i n pub lic procurement.

Conduct of Public Officers and Politicians i11volved i11 Procurement

60. (I) A ll publi c offi cers and politi cians w ho have responsibiliti es for procure n1en1sha ll -

(a) always act in the publi c interest Lind in accordance w ith the obj ectives and procedures
set out in this A ct and public procurement regulati ons;

(b) exercise powers and di sc har ge duties fo r a proper purpose, consis tent w ith their
respon sibilities, and w ith the degree of ca re and dili gence that a reasona bl e person
would exercise in simil ar c ircumstances;

(c) di sc harge duti es impartiall y so as to ass ure fa ir co mpe tit ive access to pub li c
procurement by lend erers;

(d) not use their position, or informatio n obt ained beca use o f their pos it ion, improper ly
to ga in an adva ntage for th em se l ves or so meo ne else o r cause a det r i ment to a
p rocuring enl ity;

(e) not interfere w ith or exert undu e influence on any person to affect a procurement
act ivity or decision ;

( J) at all timt:s <woid connicts or interest and the appearance o l con ll ids o r interest;

(g) 11 0 1 commit or abet corrupt, fraud1tlent , coll11si ve o r coerci ve prac tices; and,

(h) keep confidential the informati on th at comes into their possession relating lo
procuremenL, including LenJ erers' proprieLary information.

(2 ) Pu bli c offi cers and politicians shall not parti cipat e as tendcrers in pub lic procurement.

Conducl of Tenderers and Suppliers

6 1. Tcnderers or suppliers parti cipating in publi c pro cun~rn ent shall -

(a) at all times abide by their ob li g ati o n s un de r thi s Ac t and pu bl ic proc ure ment
reg ulation s, contracts and other in strum ent s app li cable to the ir con d uc t and
ac ti v ities related to public procurement ; and ,

(b) not commit or abet corrupt, fraudulent, collusive or coercive practices.

Offences

62. A person commits an offence w ho-

(a) wit ho ut reaso nabl e excuse fail s or refuses to g ive in fo rmation, o r produce any
document, ~ecord s or reports requ i red under secti on 11 , 51 (2)(a) or 57(5)(a);
 S84

(b) w ithout reasonable excuse refu ses to answer summons as req uired under section 11 ,
5 I (2)(b) or 57( 5)(b):

(c) knowingly gives false or misleading information or evidence in purported compl iance
w ith a summons under secti on I I , 5 I (2)(b) o r 57(5)(b):

(d) assau lts, resists or obstru cts any mem ber of staff of the Author ity. o r any other
authority exercising monitoring and oversight fun ct ions over pub li c procurement,
in the exercise of their powers of access or power to call for relevant in formation in
accordance with section I I :

(e) con nives or colludes to co mmit n corrupt, fraudulent, co llusive or coercive practice;

(f) con trary to thi s Ac t, int erferes w ith or exerts un due inllu ence on any officer or
emp loyee of the /\gency or a procuring entity in the performance ol' th ci r functions
or in the exerc ise of their powers under thi s /\ct:

(g) as the resu lt o f recklessness o r in tentiona l d ishonesty fai ls to exercise their powers
as n pu blic officer or po liti cian and to dischmge th eir duties fo r n proper purpose
consistent wi th their responsi bil ities:

(h) uses their position as a public officer or po liti cian di shonestly w ith the intention of
directl y nr indirect ly ga ining an advantage fo r himself or someon e else or causi ng a
detriment to a procnring entity:

(i) uses th eir posit i on as a publi c officer or politi cian re ck less ly witho ut regard lo
whether th eir condu ct may direc tl y or indirec tly ga in an advan tngc fo r him se lf or
sonH,one else or cm1se n detri111c11t to a procm ing entity:

(j) dishonestl y uses information obtai ned because of their position as n public officer
or politician to gain an nd vantage for h imsel ror someone else or cm1se a d<'t ri rn cnt to
a procurin g entity:

(k) publishes or discloses information relating lo procurement. other than in the proper
nnd nuth ori sed course of their duties as a publi c omcer or po liticinn: N ,

(I) con travenes or fail s to comply w ith a pro\·ision of this / \Ct or puh li c procurcrnent
regu lations.

Penalties

63 . (I) /\person who commits an o ffe nce und er section 62 is li abl e on convic ti on to a fin e not
exceed ing ten rnilli on Emalangeni or to a term of impr isonment not exceed ing ten years or to
both such fin e and impriso nment.

(2) A court of competent ju r isdi cti on may order a person to cornpcnsal e th e procuring
entity for any damage suffered hy the procurin g entity. if the damage resulted from the offence.
Such compensation amou nt i s a ci \' il debt payable to thr procuring en tit y.

(l) Where a procuring entit y or indi v idua l consis tentl y contravenes thi s Act, thi s shal l be-

(a) reported to the relevant b udget and ovcrc; ighl auth oriti es and serv ice commission s
as appropriate; and,

(b) recorded in th e Agency's /\ nnu al Report.

 S85

Protection /rum Prosecwion

64. No aclion or other proceedings shall lie or be instituled aga i nst any person empt)\\e red by
this Act to oversee manage or regulate the procurement process for or in respect or any act or
omission done in good faith.

PAnT VIJI
MISCELLANEOUS

Public Procuremelll Regulatio11s

65. (I) The Minisrer may, on the recommendat ion of the Agency, issue rublic procurement
regulations to regulate the procurement of goods, works and services by procuring entities.

(2) Where appropriate, different regulations may regulate centra l government bodies, public
enterprises and loca l government authorities.

Public Procureme11/ Manuals, Circulars and fw;tm ctio11s

66. The Agency may issue public procmement manuals, circulars and instruuions to provid e
further guidance on the interpretation and application of thi s Act and public procurement
regulations issued under this Act.

The Government Printer, 1\11.>abanc