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Mediation of Public Procurement Disputes in Zimbabwe

Public procurement in Zimbabwe is governed by the Procurement and Disposal of Public Assets Act [Chapter 22:23] and the Public Procurement and Disposal of Public Assets (General) Regulations, 2018. Most Framework Agreements, Call-Off Contracts or Special Conditions of Contract in Zimbabwe envisage a mechanism for the resolution of disputes. Generally, mediation is the often chosen alternative dispute resolution mechanism in Zimbabwe.

Mediation of public procurement disputes in Zimbabwe, like the mediation of other disputes, is distinct from arbitration, and is fundamentally a process of persuasion and restoration, which is rooted in facilitative dialogue. The process, is essentially of mending rather than adjudicating. When consensus is reached, the conciliator may issue a Settlement Agreement, based on an agreement voluntarily arrived at by the parties.

A typical cause in Framework Agreements, Call-Off Contracts or Special Conditions of Contract which envisages the use of mediation in the resolution of public procurement disputes in Zimbabwe is FAGP 19 which provides as follows:

“19.1 In the case of a dispute arising out of, or in connection with this Framework Agreement, the Parties shall, in good faith, make every reasonable effort to communicate and cooperate with each other with a view to amicably resolving the dispute. 19.2 Where parties have exhausted the process described in FAGP 19.1, the parties may, by mutual agreement, nominate and refer the dispute to an adjudicator / mediator to assist in the resolution of the dispute. Parties will meet their own costs with such a referral and split the costs of the adjudicator/mediator. In appointing the adjudicator/mediator parties should agree whether or not the adjudicator’s / mediator’s decision is to be final.”