Articles

The Public Procurement Appeals Authority (PPAA) has partly upheld an appeal by Mocrops Tanzania Ltd against the Cashew Nut Industry Development Trust Fund regarding a tender for supply of cashew nut pesticides and blowers.

According to the facts of the case, Mocrops Tanzania Ltd was aggrieved by the respondent’s decision to disqualify them in respect of Lot No. 4 for supply of 100,000 litres of Triadimenol 250 EC. On receiving the notification of appeal, the respondent raised four points of preliminary objections, in spite of which PPAA rejected all of them and proceeded to determine the appeal on merit.
When advancing arguments to support his appeal, the appellant stated that the award had been given to a tenderer who had failed to comply with the mandatory criteria provided in the tender document. He further stated that the successful tenderer was registered on 22nd June, 2011, contrary to the requirement of the tender document, which specified that a tenderer should have at least two years of proven track record of acceptance and usage of his pesticides in the cashew nut sector, together with adequate proven after sales technical assistance. According to the appellant’s argument, the act contravened sections 20 and 58 of PPA, 2004.

Mocrops Tanzania Ltd further added that their tender complied with all the specifications provided in the document, they had two years proven track record of usage and supply of cashew nut pesticides and blowers at the time the bids were submitted and he had been supplying the same pesticides to Cashewnut Industry Development Trust Fund for two years.

Responding to the appeal, the Cashew Nut Industry Development Trust Fund argued that Mocrops Tanzania Ltd had misconceived the requirement of the tender document. The respondent contended that the criterion of experience was not the only requirement for winning the tender as there were other evaluation criteria provided in the tender document. ”It is therefore not true that the successful tenderer had quoted to supply different pesticides, rather they had quoted for the same products but using different trade names,” added the respondent. The respondent further said that Mocrops Tanzania Ltd had indicated having one year experience. Moreover, he contended that the appellant did not submit any evidence regarding off-shelf stock of goods or commitment of credit to supply from the manufacturer of such pesticides. In view of this, Cashew Nut Industry Development Trust Fund claimed, “The appellant was disqualified on technical grounds.”

Having gone through the documents and submissions by the parties, PPAA considered three issues; whether Mocrops Tanzania Ltd was unfairly disqualified; whether the award of the tender to Tanzania Crop Care Ltd was proper at law and; to what relief, if any, are the parties entitled to.

In addressing the first issue, PPAA observed that Mocrops Tanzania Ltd was fairly disqualified in the tender process for failure to show two years proven track record of acceptance and usage of the pesticides in the cashew nut sector. Furthermore, the registration certificate alone was not sufficient evidence to establish his experience.

On the second issue, PPAA concluded that the award of the tender to the Tanzania Crop Care Ltd was not proper in the eyes of the law due to the fact that company’s tender was not responsive to the bidding document. PPAA observed that the evaluation team had noted Tanzania Crop Care Ltd’s failure to show two years proven track record of acceptance and usage of the pesticides.

Finally, on the relief the parties were entitled to, PPAA was of the view that the prayers by the appellant to order the respondent to restart the tender process afresh in observance of the law in respect to Lot No. 4 would not be wise. PPAA considered the argument by the respondent that the awarded contract had been 80 percent executed and part of the payment had already been made. Furthermore, the season for use of the pesticides is April, 2013. If an order to re-tender was to be issued, it would cause incredible economic loss to peasants. PPAA therefore deemed it wise to reject the prayers by the appellant for public interest despite been established that the award of the tender was not properly made. Also, PPAA rejected the prayers by the respondent that the appeal be dismissed in its entirety, saying that the appeal partly had merits and so each party was ordered to bear its own costs.