The Public Procurement Appeals Authority (PPAA) has dismissed an appeal that was lodged to it by Akkiru Enterprises and 11 others against Tanzania Ports Authority (TPA) regarding tender for Disposal by Sale of Sludge at Dar es Salaam Port, TPJ has learnt.
According to the facts of the case, Akkiru Enterprises and 11 others were dissatisfied with the decision of TPA to cancel the tender and to award it to Dabaga Petroleum Service Ltd through single source method of procurement. In their appeal, they claimed that Dabaga Petroleum Service Ltd, being one of the tenderers in the tender which was cancelled, in all fairness, should not have been awarded the contract without competition. Furthermore, Akkiru Enterprises and others alleged that TPA did not observe the requirements of Regulation 69 (1) of GN. No.97 of 2005 which prescribes the procedures and justification for single source procurement.
Upon notification of the appeal, TPA raised preliminary objection on three points that Akkiru Enterprises and others save for 3rd and 10th appellants had no locus stand to institute and pursue the appeal; the appellants save for 3rd and 10th appellants had no cause of action against TPA and that the appeal was lodged out of time and hence untenable in law. However, during its determination, PPAA overruled TPA’s preliminary objections as the appeal was proper before it hence proceeded to determine the matter.
Having gone through the documents and submission by the parties, PPAA considered two issues; whether the award of the tender to Dabaga Petroleum Services Ltd was made in observance of the law; and, to what reliefs if any, were the parties entitled to.
In addressing the first issue, PPAA observed that the award of the tender to Dabaga Petroleum Services Ltd was made in observance of the law since the provisions of Regulation 69 (1) (b) (3) (4) and (5) of GN. No. 97 of 2005 was observed. However, PPAA observed that once a procuring entity has satisfied the requirements of Regulation 69 (1) (b) of GN. No. 97 of 2005 which was employed by TPA, neither the applicable law nor its regulations provides any guidance as to the manner or criteria of selecting a service provider on single source basis. Therefore in absence of any legal guidance, TPA was at liberty to choose a service provider as they deemed fit.
On the reliefs, PPAA observed that since it has been established that the award of the tender to Dabaga Petroleum Services Ltd was proper at law, the appeal had no merit therefore Akkiru Enterprises and others were not entitled to any relief. Following such determination, PPAA accepted TPA’s prayer for dismissal of the appeal. As regard TPA’s prayer for costs, the prayer was rejected for want of jurisdiction as Section 82 (4) (f) of the current Public Procurement Act does not give room for procuring entities to be compensated in any way.