Columnists

Complexities of contract termination

EDGAR Chibuta.

Analysis: EDGAR CHIBUTA
THE added value from the procurement practitioners will only be appreciated by the organisation once it is below water under the bridge and that must be the opportune time for the buyer to shine like the only star in the sky.I watched in awe as the public relations officer for one city council in Zambia was lamenting about the no-show contractor who had abandoned work for the past 24 months.
The people who were interviewed expressed their deepest dissatisfaction towards the contractor and cried the loudest to the procurement entity to terminate the contract forthwith.
In the mid of the crowd, I later came under intense attack from my friend who wanted to know why the contract was not being terminated immediately considering the cry from the masses.
Testing the deeper water of contract termination is by no means an easy undertaking because a contract is by no means supposed to be taken like a gentleman’s jacket and that being the case, it requires the controlling officer to steadily analyse the terms and conditions of the contract in addition to following the law as stipulated ( in this case we shall take the Public Procurement Act Number 12 of 2008) and if need be the statutory instrument in respect to the procurement of goods and services in Zambia.
While the masses can cry for the termination of the contract to the management structures of the procuring entity, it must be borne in mind that according to the law of the land, the decision to test the deeper water of contract termination lies in the single hands of the procurement committee and not the management structure of the organisation or the one at the helm of that organisation.
The people are further reminded about the need for the procurement committees to follow the legal dictates when faced with a situation that may require termination of contract, especially those that involve huge sums of money.
Termination of contract is by no means an easy undertaking. Even when the procurement committee is sitting to deliberate the recommendation, from the procurement unit or user department, it is very imperative to examine the extenuating factors that may have caused the delay or abandonment of the works on the part of the contractor. I’m therefore compelled to go back to the legal archives and cite the Hadley vs Baxendale on the need to inform the contracting party on any issue which one strongly feels need to be brought to the fore so that the contract is by no means delayed or derailed by sheer ignorance.
From 2011 this great nation has been turned into a construction site and our duty as procurement profession is to come to give credence to the profession by ensuring that the contract is managed in a prudent and legal wise way.
We are, therefore, duty-bound to be on top of things as far as the law in respect to contract management is concerned and the time to do that is now.
Our gurus in the Zambian procurement circle such as the ever vibrant Misheck Kaoma and Mr Mutakila did advocate that the profession be given enough representation in the management structures of any organisation. Those words still stand true to this day, however that will only be possible if we the concerned will deeply show that degree of responsibility and possession of deeper seated knowledge of both national and international legal protocols in respect to the procurement of goods and services.
I got that challenge in 2014 when two closer friends Barron Mwape and Kalaluka Mbumwae straight away went on to pursue the first degree LLB in laws so that they could have a deeper understanding of the law in general. We need to leave behind larger than life footprints for others to follow.
From what I have researched, it is very difficult for professional buyers to convince the procurement committee and or management on matters related to the law because we have a myopic understanding of the law especially when our studies are limited to Level 6 Graduate Diploma of the Chartered Institute of Purchasing and Supply (CIPS). I know for sure that many of my fellow Level 6 Graduate Diploma students will be furious and straightway react to this statement, but what need to be understood is the fact that what is right is never wrong and the other way round is very true. I have always argued that CIPS must never make Legal Aspect in Procurement and Supply Chain examination module an option when it is very clear that in purchasing and supply chain management issues related to the law are never an option as the case is in the reported Ndola saga.
We have a duty at hand and I totally agree with the president of the Zambia Institute of Purchasing and Supply that procurement practitioners have a mammoth task at hand ahead of them. We need courses that are capable of preparing the procurement practitioners not only for the examinations but for the scholarly part and real work situations.
We need practitioners who are researchful and in tip-top form like legal counsels and Chartered Accountants.
The battle has been hard but we just thank God Almighty that we have reached this far as a profession and Government of the Republic of Zambia has been magnanimous enough to give us space and support.
The author is purchasing assistant Chavuma District Education Board Secretary.


Facebook Feed

Ad1