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Ammendments to PUblic Procurement Act 2004

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Re: Ammendments to PUblic Procurement Act 2004

Post  RJM on Tue Aug 17, 2010 5:08 pm

RSM,

Under current practice, I think precedent condition such as successful bidder should submit Performance prior signing the contract within 28/30 days after dispatch of the Letter of Acceptance, is an event which must take place before party to a contract must perform their obligations under that contract. In contract law a condition precedent is an event which must occur before performance under a contract becomes due i.e. before any contractual duty arises. Other definition, “a condition precedent” is one that must be met before a contract becomes effective that is to be performed by one party to an existing contract before the party is obligated to perform. In this case, it is construed that there is a contract formed as a result of offer and acceptance [agreement].

In view of the above, I am a little bit confused regarding these words “contract enters into force” and “contract becomes effective”. Forum members, I need guidance on how to distinguish the two.


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Re: Ammendments to PUblic Procurement Act 2004

Post  RSM on Tue Aug 17, 2010 12:26 pm

RJM

What is the current practice with the Perfomance Bond - i think you issue letter of acceptance stating that the contract will become effective after submission of performance bond within a certain period. The same could apply that the contract would only be effective once signed.


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Re: Ammendments to PUblic Procurement Act 2004

Post  RJM on Mon Aug 16, 2010 9:17 pm

RSM,

Under this new development, are we going to issue Letter of Acceptance/Notification of Award? OR signing of contract will be construed as Acceptance?

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Re: Ammendments to PUblic Procurement Act 2004

Post  RSM on Mon Aug 16, 2010 3:33 pm

RJM and the rest.

I concur that offer and acceptance consititute a binding contract. But under contract law if there is a condition precedent, then it must be fulfilled before the contract become valid. By Condition Precedent I meas A contractual condition that suspends the coming into effect of a contract unless or until a certain event takes place.

A typical example which we all agree is the submission of performance bond by the winning bid failure of which the bid can be awarded to the next lowest evaluated bidder. Similarly signing of contract has been introduced as another condition precident.

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Re: Ammendments to PUblic Procurement Act 2004

Post  mauka on Fri Aug 13, 2010 9:56 pm

RJM
, u do agree with me that;
Any contract is “an agreement between parties” and Agreement is “set of promise” and an agreement or contract can be of two types; written agreement or verbal agreement. But because we are involving in business operation, we don’t prefer verbal agreement because it is very difficult to create legal obligations. Thus way, we are interesting in written agreement. So when you hear that a procurement contract shall enter into force when the contract is signed between the parties, it’s nothing rather than creating legal obligations.


In another concern, as I said “I don’t think; if there is any contradiction in terms between the above sections found in PPA (2004, 2010) and Law of contract (LCA, 2002, Cap 345). They do mean the same things even in LCA” Essentially, in my last submission, I tried to explain how procurement contract may come into force as far as Law of contract is concern. Thus way I pointed some sections out from LCA in order to show the position of LCA as far as Procurement contract is concern.
I beg to submit


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Re: Ammendments to PUblic Procurement Act 2004

Post  RJM on Wed Aug 11, 2010 1:00 pm

Mauka wrote,

The answer is well explained by Section 2 (1) b and Section 7 of the LCA, where it provides acceptance as signification of assent to proposal by a person to whom the proposal is made. In this view, a contract cannot enter into force without the mutual assent of the parties. Therefore, when the offeree aka promisee to whom the proposal is made signifies his assent, he will be called acceptor and it’s where the contract get into force except it is provided otherwise in the contract. Normally parties get into written agreement in order to ensure agreements are attached by legal consequences and hence create legal obligations.

S55 (Cool of the proposed PPA 2010 read as follows: “A procurement contract shall enter into force when the contract is signed between the tenderer and the procuring entity, except where it is provided otherwise in the contract or solicitation document.”

Mauka, how do you relate Section 2(1) (b) & Section 7 of LCA, Cap 345 and S55(Cool of the proposed PPA 2010 particularly contract coming into force?


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Re: Ammendments to PUblic Procurement Act 2004

Post  mauka on Sat Aug 07, 2010 5:52 pm

RJM
To me, I don’t think; if there is any contradiction in terms between the above sections found in PPA (2004, 2010) and Law of contract (LCA, 2002, Cap 345). They do mean the same things even in LCA, Because As per section 2 (1) h of the LCA, recognize contact as an agreement with legal force. This entails that valid contact should comprise of two things
• an agreement between two parties or more and
• enforceable by law

However, Section 2 (1) e, provides An agreement as “every promise and set of promises forming a consideration of each other”. In this case, an agreement which is not enforceable by law is regarded as void and If you will try to read Section 10 (1) of the LCA as edited in 2002, you will get necessary elements for Valid agreement or contract.

But basing on your submission, I think the source of contradiction comes from this extract “when procurement contract comes into force”

The answer is well explained by Section 2 (1) b and Section 7 of the LCA, where it provides acceptance as signification of assent to proposal by a person to whom the proposal is made. In this view, a contract cannot enter into force without the mutual assent of the parties. Therefore, when the offeree aka promisee to whom the proposal is made signifies his assent, he will be called acceptor and it’s where the contract get into force except it is provided otherwise in the contract. Normally parties get into written agreement in order to ensure agreements are attached by legal consequences and hence create legal obligations.

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Re: Ammendments to PUblic Procurement Act 2004

Post  RJM on Tue Aug 03, 2010 1:57 pm

Having gone through the proposed amendments I found that one of the major changes is S55(7) of PPA 2004 regarding offer + acceptance = contract.

S55(7) of the PPA 2004 read as follows: “The procurement contract shall enter into force when a written acceptance of a tender has been communicated to the successful supplier, contractor or consultant.”

S55 (Cool of the proposed PPA 2010 read as follows: “A procurement contract shall enter into force when the contract is signed between the tenderer and the procuring entity, except where it is provided otherwise in the contract or solicitation document.”

Contractual agreement has traditionally been analyzed in terms of offer and acceptance. One part, the offeror, makes an offer which once accepted by another party, the offeree, creates a binding contract.

My concerning is whether the proposed Section 55 (Cool comply with the Contract Law that; offer + acceptance = contract.


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Ammendments to PUblic Procurement Act 2004

Post  freddy.mbeyella on Fri Jul 30, 2010 8:12 pm

RMS,
Thank you for highlights on The Public Procurement Act 2010 Bill. Indeed it is a better version!

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Ammendments to PUblic Procurement Act 2004

Post  RSM on Sun Jul 11, 2010 4:53 pm

Forum Members,

The Public Procurement Act is undergoing ammedments in this Session of the National Assembly. It is going to be re-issued as a New Act. The Public Procurement Act 2010 bill is available in PPRA's website www.ppra.go.tz.

Important Sections to Watch out are as follows;

3(2) - previously contained in PPA 2004 but now is deleted;
5(2)
7(7)
17(1)
18(2) and 18(4)
32
33(3)
34(2) and 34(3)
35(5) and 35(6)
42
46(2)
47(2) and 47(3)
48
51(3)
58(6) and 58(7)
60
64
74
77(4)
78(3) and 78(5)
82 to 88
90(6)
99



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