Public Procurement and Disposal of Public Assets (Participation by micro, small and medium enterprises) Order 2020

2. In this Order, unless the context otherwise requires- "disability" has the meaning ascribed to it under section 2 of the Disability Act; Cap. 33:06 "marginalization" means · a condition or process that hinders an individual or group of individuals from effective participation in public procurement due to social, economic or cultural circumstances; "marginalized person" means a person affected by marginalization· "medium enterprise" means an enterprise comprising at least two of the fo I lowing characteristics- ( a) annual turnover of more than fifty million Kwacha (K50,000,000) but not more than five hundred million Kwacha (K.500,000,000); (b) has number of employees above twenty but not more than ninety-nine; (c) has assets, excluding land and buildings, in the case of a manufacturing enterprise, of value above twenty million Kwacha (K.20,000,000)but not more than two hundred and fifty million Kwacha (K.250,000,000); "micro enterprise" means an enterprise comprising at least two of the following characteristics- 478 14th December, 2020 (a) annual turnover ofup to five million Kwacha (K5,000,000); (b) has number of employees not exceeding four; (c) assets, excluding land and buildings in the case of a manufacturing enterprise, which are of a maximum value of one million Kwacha (Kl,000,000); "small enterprise" means an enterprise comprising at least two of the following characteristics- (a) annual turnover above five million Kwacha (K5,000,000) but not more than fifty million Kwacha (K50,000,000); (b) has between five and twenty employees; (c) has assets, excluding land and buildings in the case of a manufacturing enterprise, which have a value of above one million Kwacha (Kl,000,000) but not above twenty million Kwacha (K20,000,000); "set aside" means the reserving of a procurement exclusively for participation by micro, small and medium size enterprises or marginalized groups; and Scope and "youth" means a person who is between the age of eighteen and thirty- five years.

3. This Order applies to participation of- , application (a) small and medium enterprises in public procurement of goods, works and services; and (b) enterprises other than those specified in subparagraph (a) where identification of a successful bidder which is micro, small or medium enterprise has failed. PART II-PARTICIPATION Of MICRO, SMALL AND MEDIUM ENTERPRISF.S IN PUBLIC PROCUREMENT Categorization 4. The following shall be the categories of suppliers to be granted of enterprises preferences and reservations under this Order- (a) micro enterprises; (b) small enterprises; and (c) medium enterprises. Eligibility for 5.-(1) Subject to subparagraph (2), a supplier shall be eligible for preferences application of the preferences and reservations under this Order if the and supplier- reservations (a) is registered as a business entity in Malawi; and (b) is registered as a micro, small or medium enterprise under this Order. 14th December, 2020 479 (2) In addition to satisfying the requirements of subparagraph (I), a micro, small or medium enterprise shall also comply with the eligibility criteria prescribed under section 52 of the Act. 6.---{l) A supplier who meets the eligibility criteria under paragraph 5 Application may submit an application for registration as a micro, small or medium for a micro, enterprise, in a duly completed Form I prescribed in the First Schedule hereto, small or to the Minister responsible for trade. medium enterprise status (2) The supplier shall pay application fees prescribed by the Minister responsible for trade. (3) Where the Minister responsible for trade is satisfied with the merit of the application made under subparagraph (1 ), he shall, within thirty days of receipt of the application, issue to the supplier, a certificate of registration in Form 2 to the First Schedule hereto. (4) The Minister may issue a certificate under paragraph (3), with conditions. (5) Where the Minister responsible for trade is not satisfied with the merit of the application, he shall, within thirty days of receipt of the application, not issue a certificate and give reasons in writing to the supplier.

7. A person shall not transfer or assign a certificate issued under this Assignment Order of certificate 8.---{l) The Minister responsible for trade may suspend a certificate Suspension of issued under this Order where the holder of the certificate is in breach of the certificate conditions of a certificate, the provisions of the Act or this Order. (2) The suspension made pursuant to subparagraph (1) shall be communicated in writing to the holder of the licence indicating the breach, the remedy for the breach and the time frame within which the remedy to the breach is to be effected. (3) A suspension made under this paragraph shall be for such period, not exceeding two (2) years, as the Minister responsible for trade may determine. (4) The suspension made pursuant to this paragraph shall be lifted where- (a) the remedy for the breach has been effected; and (b) the time frame for the suspension has lapsed: Provided that the suspension may be lifted earlier where the holder of the certificate remedies the breach and the Minister, in consultation with the Authority determines that it would be appropriate to lift the suspension. 9.---{l) The Minister responsible for trade may revoke a certificate Revocation of where- a certificate 480 14th December, 2020 (a) the certificate was issued with conditions and the holder thereof has failed to satisfy those conditions; (b) the holder of the certificate has failed to take remedial action under paragraph 8 within the period prescribed in the suspension notice; (c) a report relating to the activity for which the certificate is issued made under any written law recommends revocation: Provided that, in such a circumstance, the Minister shall ensure that the holder of the certificate is beard before a decision for revocation is made; or (d) the holder of the certificate bas been convicted of an offence which is punishable by debarment under the Act. (2) Where a certificate has been revoked, the bolder of the revoked certificate shall not participate in public procurement as micro, small or medium enterprise or marginalized person. Administration 10.-(1) For the purpose of promoting the participation of micro, small of preferences and medium enterprises in the procurement of goods, works and services, a and . procuring and disposing entity shall- reservations (a) submit to the Authority, an annual procurement plan indicating inter alia, the value and percentage of procurement reserved or intended for award to micro, small and medium enterprises; (b) indicate in a bidding document, the margin of preference applicable to micro, small and medium enterprises; (c) where applicable, state clearly in the invitation to bid, the existence of the preferences and reservations for micro, small and medium enterprises in the manner prescribed by the Director General from time to time; (d) comply with preferences and reservations which the Minister may set; and (e) submit to the Authority, quarterly reports on compliance with the preferences and reservations stipulated in the annual procurement plan. (2) Subject to subparagraph (5), where a micro, small or medium enterprise is owned by a marginalized person, a procuring and disposing entity, shall in addition to the preferences and reservations stipulated herein, grant a margin of preference of- ( a) fifteen percent for procurement of goods or services; and (b) ten percent for procurement of works; and (3) For the purpose of subparagraph (2), "marginalized persons" includes women, youth, persons with disability and the elderly. 14th December, 2020 481 (4) A micro, small or medium enterprise shall be entitled to one preference or reservation per procurement. (5) Notwithstanding subparagraph(2), where there is more than one margin of preference or reservation applicable to a micro, small or medium enterprise, a procuring and disposing entity shall adopt the margin of preference or reservation which presents the most economically advantageous position to the intended beneficiary.

11.-(1) A micro, small or medium enterprise may subcontract another Sub- micro, small or medium enterprise and where this is done, the bidder shall include details of the subcontract in the bid. ::j~:t con~a~ing (2) A procuring and disposing entity may require a micro, small or medium enterprise to subcontract parts of a contract to another micro, small or medium enterprise for the purpose of enhancing capacity to deliver the contract of procurement. (3) Where a procuring and disposing entity has required subcontracting under subparagraph (2}-- (a) the bidder shall only subcontract to another enterprise which is a micro, small or medium enterprise; and (b) the subcontracted value shall not exceed forty per cent of the contract value. (4) A micro, small or medium enterprise may submit a joint bid in order to participate in a public procurement of goods, works and services.

12.-(1) A procuring and disposing entity shall prioritize locally Prioritization produced goods and services by granting a margin of preference of twenty of locally produced percent in a procurement where applicable. goods and services (2) The goods and services shall be regarded as locally produced where the goods or services are certified as such by the Minister responsible for trade.

13. A procuring and disposing entity shall reserve contracts for Procurement procurement of goods, works and services listed in the Second Schedule contracts set hereto, for bidders which are micro, small and medium enterprises or aside for micro, small marginalized groups. or medium enterprises

14. A procuring and disposing entity shall restrict the participation of Participation micro, small or mediwn enterprises in the supply of goods and services in thresholds for accordance with thresholds prescribed in the Third Schedule hereto. goods and services

15. A procuring and disposing entity shall restrict the participation of Participation micro, small.or medium enterprises or marginalized groups in the provision of thresholds for works in accordance with thresholds prescribed in the Fourth Schedule hereto. works 482 14th December, 2020 Prohibited competition 16. A procuring and disposing entity shall not permit bidders in different categories provided in paragraph 4 of this Order to bid at the same time in a single procurement contract. Failure to identify a 17.-{l) Where a procuring and disposing entity uses a request for successful quotation method and fails to identify a supplier within the categories of bidder micro, small and medium enterprises, the procuring and disposing entity shall use open tender method of procurement: Provided that participation in the procurement shall be restricted to micro, small or medium enterprises. (2) Subject to subparagraph (3), where a procuring and disposing entity uses the open tender method and fails to identify a supplier which is micro, small or medium enterprises, the procuring and disposing entity shall seek prior approval from the Authority to open participation in the procurement to all eligible bidders. (3) A supplier which, not being a micro, small or medium enterprise,· intends to submit a bid to a procuring and disposing entity pursuant to subparagraph (2) may partner with a micro, small or medium when submitting its bid. • (4) Where a partnership has been entered as envisaged under subparagraph (3), a procuring and disposing entity shall- (a) accord the partnership, a five percent (5%) margin of ·- preference; (b) ensure that the partners have executed a partnership agreement with clear terms on the- (i) role to be played by the micro, small or medium enteprise; (ii) amount of money payable to the micro, small or medium enterprise pursuant to the partnership; and (iii) plan on how knowledge and skills shall be transferred to the micro, small or medium enterprise. (5) Where a procuring and disposing entity fails to identify a successful bidder among bidders that submit bids pursuant to this paragraph, the procuring and disposing entity shall inform all unsuccessful bidders in writing. Obligations of a l 8.-(1) A supplier which has been granted a certificate under this Order supplier shall not, for the mere reason of such status, be exempted from comp'lying with the general obligations of a supplier under the Act or the Regulations made thereunder or any other written law. (2) Without prejudice to the generality of subparagraph (1), the supplier shall- (a) not, in the process of fulfilling a procurement contract, commit a misconduct prohibited under section 55 of the Act; 483 14th December, 2020 (b) supply goods, works and services of the standard required under the contract; and (c) meet all obligations in relation to the procurement contract. (3) A supplier which has been awarded a procurement contract under this Order shall not assign or subcontract the procurement contract to another person without prior consent of the procuring and disposing entity which consent shall only be granted upon prior approval by the Authority.

19. The Authority shall- Monitoring by the (a) monitor the application and implementation of preferences and Authonty reservations under this Order; and (b) develop, maintain and periodically update a register of procurement contracts awarded under this Order.

20. The Authority shall, within thirty days from the end of each quarter, Publication of contract publish on its website, the material information for all contracts which details procuring and disposing entities have submitted to the Authority pursuant to paragraph 10 (I) (e) on contracts awarded to micro, small or medium enterprises. PART' lil-OFFENCES AND ENFORCEMENT Sanctions for 21.--{l) Where an act or omission, which is committed by any person or violations entity in contravention of this Order, constitutes an offence under any written law, the person or entity shall be subjected to the provisions of that written law as if the act or omission was committed under such written law. (2) Where no similar offence exists in any written law, the general offence provision prescribed under section 63 of the Act shall apply. SCHEDULES para 6 (1)

FIRST SCHEDULE FORMS FORM 1: APPLICATION FORM FOR REGISTRATION AS A MICRO, SMALL AND MEDIUM ENTERPRISES/MARGINALIZED GROUP Form to be completed in block letters and submitted in duplicate- 1. Full name of applicant . 2. Name of business . 3. Business Registration Certificate number . 4. Percentage of foreign shareholding 5. Tax Payer Identification Number . 484 14th December, 2020 6. Names and addresses of owners of the business . 7. Particulars of owners (attach list where necessary) . Name of Owner Nationality Identity Male/Female Age Contact Details 8. [s the business owned by a person with disabilities and describe nature of disability 9. Nature of business . IO. Are goods manufactured locally . •• 11. Physical location of the business . (a) Location: Village, road or street name . •; Chief ( if app Iicab le) . Town or District . (b) Please state if plot is freehold, leasehold or customary land (give plot No. if applicable) . 12. Annual sales turnover . umber of employees . Business capiral . ASSETS (NON CASH) . Name and address of your bank . Account Number . 13. Please attach the following documents: (a) Certificate of registration/incorporation (b) Tax clearance certificate (c) National Identification document (d) Current business licence 14th December, 2020 485 DECLARATION I declare that the information given is true and correct to the best of my knowledge and belief. Signed by . Dated this day of , 20 . OFFICIAL USE Application Fee Paid Receipt No . :xx:xxxxxxxx FORM II REGISTRATION CERTIFICATE FOR MICRO, SMALL OR MEDIUM ENTERPRISE Registration Number: TIIlS IS TO CERTIFY THAT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . is registered as Micro/Small/Medium/ [delete where not applicable] enterprise in Malawi This certificate is valid from to . Given under the hand of the Secretary for Trade at , Malawi .............................................................................................................. Dated this day of Secretary for Trade day of 20 . EJ

SECOND SCHEDULE para 13 LIST OF SECTORS WHOSE PROCUREMENT IS RESTRICTED TO MICRO, SMALL AND MEDIUM ENTERPRISES (This list is inclusive but may be changed from time to time by the Director General by Order published in the Gazette}- A. Goods- 1. Horticultural products 2. Fish and fish products 3. Milk and milk products 4. Poultry products 486 14th December, 2020 S. Foodstuffs 6. Agricultural Equipment 7. Fertilizer 8. All building materials 9. Agricultural chemicals 10. Veterinary supplies 11. Seeds/seedlings 12. Fingerlings 13. Livestock 14. Farm implements 15. Teaching and learning materials 16. Classroom furniture 17. Laboratory, chemicals and equipment 18. Apprenticeship tools and equipment 19. Promotional material 20. Hospital furniture & fittings 21. Hospital kitchenware and utensils 22. Personal protective clothing & equipment 23. Hospital linen 24. Patient gowns 25. Medical personnel uniforms 26. Leather and leather products 27. Prison & and wildlife guards uniforms 28. Cleaning chemicals & materials 29. Irrigation equipment and accessories 30. Hydro Power transmission materials 31. Solar power installation materials. 32. Gas supplies 33. Firewood supplies 34. Pipes and fittings 14th December, 2020 487 35. Water meters 36. Information and Communication Technology Communication equipment 37. Motors 38. Auto spares 39. Pumps 40. Water tanks 41. Bobbins for electrical transmission poles 42. Products that are certified under the Buy Malawi Strategy 43. Sporting materials and equipment 44. Medicine, pharmaceuticals and medical supplies B. Works 1. School blocks, staff houses, dispensaries, markets, office blocks, water kiosks 2. Earth dams 3. Fish ponds 4. Prefabricated concrete products 5. Solar installation 6. Plumbing 7. Electrical works 8. Grass cutting 9. Road grading/shaping I 0. Road drainage works 11. Pot-hole patching 12. Road gravelling. 13. Simple bridges: concrete and timber deck bridges 14. Earth dams 15. Electric wiring services 16. Road markings 17. DriJling Works 18. Landscaping 19. Construction of shallow wells 488 14th December, 2020 20. Welding and fabrication 21. Interior design services C. Consulting Services Simple consultancies: up to KSO million. D. Non-consulting services 1. Local haulage 2. Local passenger service 3. Car hire services 4. Travel agents 5. Clearing agents and freight forwarding 6. Refuse collection 7. Refuse recycling 8. Events management 9. Public toilets and bathrooms 10. Mobile toilets and bathrooms 11. Cleaning services 12. Fumigation services 13. Emptying of septic tanks 14. Catering services 15. Security services 16. Local courier services 14th December, 2020 489

THIRD SCHEDULE (para 14) THRESHOLDS FOR PARTICIPATION OF MICRO, SMALL AND MEDIUM ENTERPRISES IN PROCUREMENT OF GOODS AND SERVICES Micro Enterprise Small Enterprise Medium Enterprise Goods/ Above KS million Above KSOmillion non-consulting but not more than but not more to services Up to KS million KSO million KSOO million Above KS million Above K2S million Consulting but not more than but not more than services Up to KS million K2S million KSOO million

FOURTH SCHEDULE (para 15) THRESHOLDS FOR PARTICIPATION OF MICRO, SMALL AND MEDIUM ENTERPRJSES INPROCUREMENT OF WORKS INCLUDING WORKS SUPERVISION CONSULTANCY Micro Enterprise Small Enterprise Medium Enterprise Above KS million Above K50m.illion ' but not more than but not more to Works Up to KS million KSO million K500 million Made this 11th day of December, 2020. E. HAUS! (FILE :-10. PPDA/0 l /04) Director General GOVERNMENT NOTICE NO. 97 lMlvfUNITIES AND PRIVILEGES ACT (CAP 16:01) IMMUNITIES AND PRIVlLEGES (INTERNATIONAL ATOMIC ENERGY AGENCY) ORDER, 2020 IN EXERCISE of the powers conferred by section 24 (1) of the Immunities and Privileges Act, I, EISENHOWERNDUWA MKAKA, Minister of Foreign Affairs, make the following Order- 490 14th December, 2020 Citation 1. This Order may be cited as the Immunities and Privileges (International Atomic Energy Agency) Order, 2020. Immunities 2. The International Atomic Energy Agency (hereinafter referred to as and privileges and capacities "IAEA") shall have all the immunities and privileges set out in Part r of the of lITA Fifth Schedule to the Act, and shall also have all the legal capacities of a body corporate. Immunities 3. There are conferred upon such persons, not being citizens of, or and privileges of representa- permanent residents in, Malawi, as IAEA may in writing to the Minister of tives and staff Foreign Affairs designate by name as being- oflITA (a) representatives ofIAEA or holders of such high offices ofIAEA as shall be specified in such writing, all the immunities and privileges set out in Part IIof the Fifth Schedule to the Act; and (b) officers or servants of IAEA of such class as shall be specified in such writing, all the immunities and privileges set out in Part ill of the Fifth Schedule to the Act. Made this 19th day of September, 2020. E.N.MKAKA (FILE NO. EA/ ADMJN/5/8) Minister of Foreign Affairs GOVERNMENT NOTICE No. 98 IMMUNITIES AND PRfVILEGES ACT (CAP 16:01) IMMUNITIES AND PRIVILEGES (INTERNATIONAL INSTITUTE OF TROPICAL AGRICULTURE) ORDER, 2020 TN EXERCISE of the powers conferred by section 24 (1) of the Immunities and Privileges Act, I, EISENHOWER NDUWA MKAKA, Minister of Foreign Affairs, make the following Order- Citation 1. This Order may be cited as the Immunities and Privileges (International Institute of Tropical Agriculture) Order, 2020. Immunities and privileges 2. The International Institute of Tropical Agriculture (hereinafter and capacities referred to as "UTA") shall have all the immunities and privileges set out in ofJITA Part I of the Fifth Schedule to the Act, and shall also have all the legal capacities of a body corporate. Immunities and privileges 3. There are conferred upon such persons, not being citizens of, or of representa- permanent residents in, Malawi, as UTA may in writing to the Minister of tives and staff Foreign Affairs designate by name as being- ofl!TA (a) representatives of ITTA or holders of such high offices of UTA as shall be specified in such wtiting, all the immunities and privileges set out in Part II of the Fifth Schedule to the Act; and 14th December, 2020 491 ( b) officers or servants of ITTA of such class as shall be specified in such writing, all the immunities and privileges set out in Part m of the Fifth Schedule to the Act. Made this 2nd day of September, 2020. E.N. MKAKA (FILE NO. FA/LA/5/8) Minister of Foreign Affairs Printed and published by THE Go\TERNMEl'IT PRlNTER, Lilongwe, Malawi-(Price Kl,500.00)