PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC ASSETS ACT, 2003.

(i) originating from the Consolidated Fund and related special finances expended through the capital or recurrent budgets, whatever form these may take;

(ii) that may be earmarked for external obligation purposes, except those resources that may be earmarked for payments of membership subscriptions and contributions; and

(iii) of a procuring and disposing entity;

(b) resources in the form of counterpart transfers or co-financing or any finances of a similar nature within the context of development cooperation agreements for the implementation of national programmes; and

(d) procurement financed from specific public finances specified in paragraph (a), in the case of an entity not being of Government, except where the Authority confirms in writing, that the procurement system of the entity is satisfactory;

(e) procurement and disposal by a company registered under the Companies Act, in which a procuring and disposing entity has majority interest.

(1a) For the avoidance of doubt, the following activities by a procuring and disposing entity are not procurement to which this Act applies—

(a) the acquisition of an asset or of equipment, where the asset or equipment is being disposed of by another procuring and disposing entity in accordance with section 87;

(b) the acquisition of a service provided by another procuring and disposing entity, except a service normally offered by that procuring and disposing entity for a fee; and

(c) the recruitment of the services of an individual as an employee of a procuring and disposing entity in accordance with the administrative policies of the procuring and disposing entity.

(1b) Subject to subsection (1c), this Act shall not apply to the Auditor General in the selection of private audit firms to undertake any assignment under the mandate of the Auditor General.

(1c) The Auditor General shall in exercise of his or her mandate in subsection (1b) apply the principles of transparency and competition in order to ensure value for money.

(2) Any dispute arising from the application of this Act shall be referred to the Authority for its decision following procedures to be prescribed by regulations made under this Act.

3. Interpretation.

In this Act, unless the context otherwise requires—

"accounting officer" means—

(a) an accounting officer appointed as such by the Secretary to the Treasury;

(b) a person appointed under an Act of Parliament or under an instrument of appointment made under an Act of Parliament, including the Companies Act, to perform the functions of accounting officer of a procuring and disposing entity; or

(c) a person appointed to perform the functions of accounting officer of an entity not being of Government, to which section 2(1)(d) applies;

"authorised officer" means a person appointed as an authorised officer under section 8;

"Authority" means the Public Procurement and Disposal of Public Assets Authority established in section 5 of this Act;

"award" means a decision by a Tender Board established under the Local Governments Act, 1997 or Contracts Committee provided for in paragraph (b) of section 24, or any other subsidiary body of a procuring and disposing entity to which a Contracts Committee or a Tender Board may delegate powers of adjudication and award within a specified financial threshold, to determine the successful bidder;

"best practices" means the industry standards defined in this Act;

"bid" means an offer to provide or to acquire works, services or supplies or any combination thereof, and shall include pre- qualification where applicable;

"bidder" means a physical or artificial person intending to participate or participating in public procurement or disposal proceedings;

"bidding documents" means solicitation documents;

"Bid Notice" means any advertisement by which eligible providers are invited to submit written offers to provide or acquire works, services and supplies, or any combination of them in case of procurement and disposal respectively;

"competent authority" means a Government office which has the mandate to perform a specified function;

"consultancy service" means a service of an intellectual or advisory nature, provided by a practitioner who is skilled and qualified in a particular field or profession; and includes, but is not limited to, engineering design or supervision, accountancy, auditing, financial services, procurement services, training and capacity building services, management advice, policy studies and advice and assistance with institutional reform;

"consultant" means an individual who, or a firm, company, corporation, organisation or partnership which provides consultancy services to a procuring and disposing entity;

"contract" means an agreement between a procuring and disposing entity and a provider, resulting from the application of the appropriate and approved procurement or disposal procedures and proceedings as the case may be, concluded in pursuance of a bid award decision of a Contracts Committee or any other appropriate authority;

"Contracts Committee" is the committee provided for under Part III of this Act;

"Contractor" means a provider as defined in this Act;

"corrupt practice" includes the offering, giving, receiving, or soliciting of anything of value to influence the action of a public official in the procurement or disposal process or in contract execution;

"currency point" has the meaning assigned to it in the First schedule;

"Defence and National Security organs" means Uganda Peoples' Defence Forces, Uganda Police Force, Uganda Prisons service, Intelligence Services and National Security Council;

"disposal" means the divestiture of public assets, including intellectual and proprietary rights and goodwill, and any other rights of a procuring and disposing entity by any means, including sale, rental, lease, franchise, auction, or any combination however classified other than those regulated by the Public Enterprise Reform and Divestiture Statute, 1993;

"disposal process" means the successive stages in the disposal cycle, including planning, choice of procedure, measures to solicit offers from bidders, examination and evaluation of those offers and award of contract;

"emergency" means circumstances which are urgent, unforeseeable and not caused by dilatory conduct;

"emergency situation" means a circumstance which is urgent or unforeseeable or a situation which is not caused by dilatory conduct where—

(a) Uganda is seriously threatened by or actually confronted with a disaster, catastrophe, war or an act of God;

(b) life or the quality of life or environment may be seriously compromised;

(c) the conditions or quality of goods, equipment, buildings or publicly owned capital goods may seriously deteriorate unless action is urgently and necessarily taken to maintain them in their actual value or usefulness;

(d) an investment project is seriously delayed for want of minor items; or

(e) a Government programme would be delayed or seriously compromised unless a procurement is undertaken within the required time frame;

"foreign provider" means a provider whose business is not registered in Uganda;

"fraudulent practice" includes a misrepresentation of facts in order to influence a procurement or disposal process or the execution of a contract to the detriment of the procuring or disposing entity, and includes collusive practices among bidders prior to or after bid submission designed to establish bid prices at artificial noncompetitive levels and to deprive the procuring and disposing entity of the benefits of free and open competition;

"guidelines" means directives issued by the Authority under section 97 of this Act;

"industry standards" means those standards defined and codified by internationally recognized providers' associations and professional bodies in the respective fields and includes best practices;

"information" means written, visual, aural and electronic information;

"listed provider" means a provider registered by the Authority in accordance with this Act;

"Minister" means the Minister responsible for Finance;

"national provider" means a provider registered in Uganda and wholly owned and controlled by Ugandans;

"nonconsultancy service" means a service of a skilled or a non-skilled nature, which is not a consultancy service; and includes, cleaning, security and maintenance and repair services;

"pre-qualification" means a screening process designed to ensure that invitations to bid are confined to capable providers;

"procurement" means acquisition by purchase, rental, lease, hire purchase, licence, tenancy, franchise, or any other contractual means, of any type of works, services or supplies or any combination;

"procurement and disposal notice board" means the notice board of a procuring and disposing entity, which is used to display notices required to be displayed under this Act and regulations made under this Act and to display any other information relating to the procurement and disposal activities of the procuring and disposing entity;

"Procurement and Disposal Unit" means a division in each procuring and disposing entity responsible for the execution of the procurement and disposal function;

"procurement process" means the successive stages in the procurement cycle including planning, choice of procedure, measures to solicit offers from bidders, examination and evaluation of those offers, award of contract, and contract management;

"procurement 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 or who is certified or registered by a procurement professional body;

"procuring and disposing entity" means—

(a) a Ministry or department of Government;

(b) a district council or a municipal council;

(d) a company registered under the Companies Act in which Government or a procurement and disposing entity—

(i) controls the composition of the board of directors of the company;

(ii) is entitled to cast, or controls the casting of more than 50 percent of the maximum number of votes that may be cast at a general meeting of the company; or

(iii) controls more than 50 percent of the issued share capital of the company, excluding any part of the issued share capital that does not carry a right to participate beyond a specified amount in the distribution of profits or capital; and

(e) an entity not being of Government, to which section 2(1)(d) applies;

and includes—

(f) a commission established under the Constitution or under an Act of Parliament;

(g) a public university and a public tertiary institution established under the Universities and other Tertiary Institutions Act, 2001;

(h) Bank of Uganda except in exercise of the functions specified in section 4 of the Bank of Uganda Act; and

(i) any other procuring and disposing entity as may be prescribed by the Minister;

"provider" means a natural person or an incorporated body including a consultant, contractor or supplier licenced by a competent authority to undertake business activities;

"public asset" means any property, tangible or intangible, owned by Government or by a procuring and disposing entity, including physical property, shares, proprietary rights and land, except land held by the Uganda Land Commission or a district land board or land which is compulsorily acquired by Government in accordance with the law;

"public funds" means monetary resources appropriated to procuring and disposing entities through budgetary processes, including the Consolidated Fund, grants and credits put at the disposal of the procuring and disposing entities by foreign donors; and revenues generated by the procuring and disposing entities;

"resident provider" means a provider registered in Uganda who is not a national provider;

"services" means any object of procurement or disposal other than works and supplies, and includes professional, non professional and commercial types of services as well as supplies and works which are incidental to, but not exceeding the value of those services;

"specifications" means the description of an object of procurement or disposal in accordance with national and international standards adopted and approved by the Authority, after consultation with the National Bureau of standards, or other appropriate trade associations and professions, the use of which shall be mandatory in all bidding documents;

"solicitation documents" means bidding documents or any other documents inviting bidders to participate in procurement or disposal proceedings; and includes documents inviting potential bidders to pre-qualify, and standard bidding documents;

"supplies" means goods, raw materials, products, equipment, livestock, assets, land or objects of any kind and description in solid, liquid or gaseous form, or in the form of electricity, or intellectual and proprietary rights as well as works or services incidental to the provision of those supplies where the value of the works or services does not exceed the value of the supplies;

"tender" means "bid";

"urgent" does not include circumstances that—

(a) should have been foreseen by the procuring and disposing entity;

(b) are a result of inadequate planning; or

"User Department" means any department, division, branch or section of the procuring and disposing entity, including any project unit working under the authority of the procuring and disposing entity, which initiates procurement and disposal requirements and is the user of the requirements; and

"works" means any work associated with the construction, reconstruction, demolition, repair, or renovation of a building or structure, on the surface or underground, on and underwater, and includes the preparation, excavation, erection, assembly, installation, testing and commissioning of any plant, equipment or materials, decoration and finishing, turnkey projects, build own and operate projects, build operate and transfer projects or any arrangement of this nature, or any other form of private and public partnerships or joint development activities, all or any of which may include management, maintenance, testing, commissioning and training; as well as supplies or services incidental to those works where the value of the incidental supplies or services does not exceed the value of the works.

4. International obligations.

(1) Where this Act conflicts with an obligation of the Republic of Uganda arising out of an agreement with one or more states, or with an international organisation, the provisions of the agreement shall prevail over this Act.

(2) Where an agreement referred to in this section contains a preference or preferences in favour of national and resident providers, a procuring and disposing entity shall ensure that the applicable preference or preferences are clearly stated in the bidding documents.

4A. Procurement procedures under bilateral tied loans.

(1) Where a bilateral loan or negotiated grant contains a condition that the provider shall originate from the country of the donor, procurement of the provider shall be in accordance with this Act.

(2) Notwithstanding subsection (1), where there is a conflict between this Act, regulations made under this Act or guidelines issued by the Authority and a condition imposed by the donor of the funds, the conditions of the donor shall prevail with respect to the procurement that uses the funds.

PART II
THE PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC ASSETS AUTHORITY.

5. Establishment of the Authority.

(1) There is established an autonomous body to be known as the "Public Procurement and Disposal of Public Assets Authority", in this Act referred to as the "Authority".

(2) The Authority shall be a body corporate with perpetual succession and a common seal, and shall be capable of suing and being sued in its corporate name and, subject to this Act, may borrow money, acquire and dispose of property, and do all other things a body corporate may lawfully do.

(3) The application of the seal of the Authority on any document shall be authenticated by the signatures of the Chairperson and the Executive Director, and in the absence of the Chairperson, by any two members of the Board, and the Executive Director.

(4) Every document purporting to be an instrument issued by the Authority, sealed with the seal of the Authority and authenticated in accordance with subsection (3), shall be deemed to be an instrument of the Authority and shall be received in evidence without further proof.

6. Objectives of the Authority.

The objectives of the Authority are to—

(a) ensure the application of fair, competitive, transparent, nondiscriminatory and value for money procurement and disposal standards and practices;

(b) advise Government, local governments and other procuring and disposing entities on procurement and disposal policies, systems and practices and where necessary, on their harmonisation;

(d) monitor compliance of procuring and disposing entities; and

(e) build procurement and disposal capacity in Uganda.

7. Functions of the Authority.

(1) The functions of the Authority are to—

(a) advise Central Government, Local Governments and other procuring and disposing entities on all public procurement and disposal policies, principles and practices;

(b) monitor and report on the performance of the public procurement and disposal systems in Uganda and advise on desirable changes;

(c) advise competent authorities on standards for procurement education and training, competence levels and certification requirements;

(d) prepare, update and issue authorised versions of the standardized bidding documents, procedural forms and any other attendant documents to procuring and disposing entities;

(e) ensure that any deviation from the use of the standardized bidding documents, procedural forms and any other attendant documents is effected only after the prior, written approval of the Authority;

(f) issue guidelines under section 97 of this Act;

(g) organize and maintain a system for the publication of data on public procurement and disposal opportunities, awards and any other information of public interest as may be determined by the Authority;

(h) maintain a register of providers of works, services and supplies;

(i) conduct periodic inspections of the records and proceedings of the procuring and disposing entities to ensure full and correct application of this Act;

(j) institute—

(i) procurement or disposal audits during the bid preparatory process;

(ii) contract audits in the course of the execution of an awarded bid; and

(iii) performance audit after the completion of the contract in respect of any procurement or disposal, as may be required;

(k) adopt, adapt and update common specifications standards, the use of which shall be mandatory for all procuring and disposing entities;

(l) determine, develop, introduce, maintain and update related system wide databases and technology;

(m) develop a procurement and disposal capacity building strategy for institutional and human resource development;

(n) where applicable, determine the prices of works, services and supplies which are used in common by two or more procuring and disposing entities and which may be subject to common procurement; and review the prices from time to time;

(o) establish and maintain institutional linkages with entities with professional and related interest in public procurement and disposal;

(p) undertake procurement and disposal research and surveys nationally and internationally;

(q) undertake any activity that may be necessary for the execution of its functions; and

(r) administer and enforce compliance with all the provisions of this Act, regulations and guidelines issued under this Act.

(2) The Authority may contract a third party to carry out procurement audits, investigations and inspections.

8. Powers of the Authority.

(1) In the exercise of its regulatory functions, the Authority shall have the power to—

(a) require any information, documents, records and reports in respect of any aspect of the public procurement and disposal process where a breach, wrongdoing, mismanagement or collusion has been alleged, reported or proven against any procuring and disposing entity or provider;

(b) summon witnesses, call for the production of books of accounts, plans, documents, and examine witnesses and parties concerned on oath;

(d) cause to be inspected any procurement or disposal transaction to ensure compliance with a bid award by a procuring and disposing entity;

(e) act upon complaints by procuring and disposing entities, providers or any other entity or person, in respect of any procurement or disposal activity, following the procedure in section 91;

(f) suspend a provider from engaging in any public procurement or disposal process, in accordance with section 94.

(2) For the purpose of conducting procurement and disposal audits, or compliance checks and investigations, the Executive Director may in writing—

(a) authorise an officer of the Authority; or

(b) appoint any person to be an authorised officer,

to enter any premises of a procuring and disposing entity, at a reasonable time and inspect the premises and to make any inquiries that may be necessary for the collection of information.

(3) Where an officer of the Authority or an authorised officer is refused entry or is prevented from entering premises, contrary to subsection (2), a magistrate may, on application by the Authority, issue a warrant authorising the Police to enter the premises, using such force as may be reasonably necessary and to conduct the search and obtain the required information.

9. Action on recommendations of the Authority.

(1) Where there is persistent or serious breach of this Act or regulations or guidelines made under this Act, the Authority may—

(a) direct the concerned procuring and disposing entity to take such corrective action as may be necessary in the circumstances, to rectify the breach; or

(b) recommend to a competent authority—

(i) to suspend the officer responsible for the breach;

(ii) to replace the head of the procurement and disposal unit or the Chairperson of the Contracts Committee, as the case may be;

(iii) to discipline the accounting officer;

(iv) to transfer temporarily, the procuring and disposing function of a procuring and disposing entity to a third party procurement agency.

(2) A competent authority shall respond in writing to the Authority's recommendations under subsection (1)(b) within a period prescribed by regulations made under this Act.

(3) Where the competent authority rejects the Authority's recommendations under subsection (1)(b), the Authority shall—

(a) communicate its recommendations and all related supporting documentation to the relevant law enforcement and oversight agencies for their action; and

(b) request for any other appropriate action within the power of the competent authority.

(4) The competent authority shall respond in writing to the Authority's recommendations within a period to be specified in regulations made under this Act, on the precise action taken on the Authority's recommendation, or give an explanation if no action is deemed necessary.

(5) The Authority shall, in its Annual Performance Evaluation Report include—

(a) its audited findings and complaints investigated;

(b) its recommended corrective measures in each case;

(i) respective competent authority;

(ii) relevant law enforcement and ov

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