Review of Complaints and Procurements Decisions under the Public Procurement Act, 2011
The Public Procurement Act, No. 7 of 2011 have proven the dispute resolution mechanism procedures in public procurement where any tenderer who claims to have suffered or that may suffer any loss or injury as a result of a breach of a duty imposed on a procuring entity by the Act may seek a review in accordance with Sections 96 and 97(2)
The review shall not apply to-
- the selection of a method of procurement or in the case of services the choice of a selecting procedure;
- the limitation of procurement proceedings on the basis of nationality in accordance with section 53 of the Act or in accordance with the prescribed Regulations;
- in the case of services, a refusal by the procuring entity to respond to an expression of interest in participating in request for proposals proceedings.
The Act, 2011 provides for two tier appeal mechanism:-
- Administrative review by the Head of Procuring Entity (Section 96; Regulations 105, 106 )
- Review by the Appeals Authority (Section 97; Regulation 107)
Administrative review by the Head of Procuring Entity (Section 96)
Any complaints or dispute between procuring entities and tenderers which arise in respect of procurement proceedings, disposal of public assets by tender and awards of contracts shall be reviewed and decided upon a written decision of the accounting officer of a procuring entity and give reasons for his decision.
Procedures for submission of application for administrative review to the Head of the Procuring Entity (Regulation 105)
Any application for administrative review shall be submitted in writing or electronically to the accounting officer of a procuring entity and a copy shall be served to the Authority within twenty eight (28) days of the tenderer becoming or should have become aware of the circumstances giving rise to the complaint or dispute.
Any application for administrative review shall not apply to complaints submitted in response to the notice of intention to award the contract issued to tenderers pursuant to Section 60(3) of the Act.
The application for administrative review shall contain-
Details of the procurement or disposal requirements to which the complaint relates; details of the provisions of the Act, Regulations or provisions that have been breached or omitted; an explanation of how the provisions of the Act, Regulations or provisions have been breached or omitted, including the dates and name of the responsible public officer, where known; documentary or other evidence supporting the complaint where available; remedies sought; and any other information relevant to the complaint.
No fee shall be charged on the application for administrative review by the Head of procuring entity.
The accounting officer of a procuring entity shall not entertain a complaint or dispute or continue to do so after the procurement or disposal contract has entered into force.
An accounting officer shall, upon receipt of an application for administrative review-
suspend the procurement or disposal proceedings of the tender in dispute, until he delivers a written decision on the complaint; and notify all tenderers who participated in the tender, of the complaint and of its substance within three (3) working days of receipt of such application and the tenderers who opt to join in the proceeding shall submit written responses within three (3) working days of receipt of such notification.
Upon receiving an application for review, an accounting officer shall institute an investigation to consider- the information and evidence contained in the application; the information in the records kept by a procuring entity; the information provided by other tenderers; and any other relevant information.
The investigation instituted may be conducted by an independent review panel appointed from within or outside his organization depending on the nature of the complaint, which shall review the complaint and advise the Head of the procuring entity on the appropriate actions to be taken.
In appointing members of a review panel, the accounting officer shall consider their expertise and experience on the subject matter of the tender.
Time limit for administrative review by the Head of procuring entity
An accounting officer shall, within fourteen (14) days after receipt of the complaint or dispute, deliver a written decision to a complainant and other tenderers who participated in the proceedings.
The decision of accounting officer shall address fully the tenderer’s grounds of complaints and shall indicate whether the application is upheld in whole, in part or rejected; the reasons for the decision; and any corrective measures to be taken;
The accounting officer shall submit a copy of the decision to the Authority within seven (7) days from the date of its delivery.
Review by the PPAA (Section 97; Regulation 107)
Complaints or disputes which-are not settled within the specified period; are not amicably settled by the accounting officer; or arise after the procurement contract has entered into force pursuant to section 60(11) of the Act, Then the complaint shall be referred to the Appeals Authority within fourteen (14) days from the date when the tenderer received the decision of the accounting officer or, in case no decision is issued after the expiry of the time stipulated under regulation 106 (6) or when the tender become aware or ought to have become aware of the circumstances giving rise to the complaint or dispute pursuant to section 97 (3) of the Act.
The Appeals Authority shall, upon receipt of a complaint or dispute, give notice of the complaint or dispute to the procuring entity in which case the procuring entity shall be required to submit all the relevant documentations and information pertaining to the particular tender.
The Appeals Authority shall, within forty five (45) days, issue a written decision concerning the complaint or dispute stating the reasons for the decision and the remedies granted, if any.
The decision of the Appeals Authority shall be final unless is subject for judicial review under section 95 of the Act.
A tenderer or procuring entity aggrieved by the decision of the Appeals Authority may, within fourteen days of the date of delivery of such decision, apply to the High Court for judicial review.
Where the application is before the High Court for juridical review: in case of an application by a tenderer challenging the decision of the Appeals Authority, the Appeals Authority shall be represented in the High Court by the Attorney General; and in case of an application by a procuring entity challenging the decision of the Appeals Authority, the procuring entity and the Appeals Authority shall state their positions to the Attorney General.
Where the procuring entity and the Appeals Authority have submitted their positions to the Attorney General, the Attorney General shall state case containing positions of both parties and file a case marked “Case Stated” in the High Court for its opinion in accordance with Order XXXIV of the Civil Procedure Code.
The judgment of the High Court shall be communicated to the parties by the Attorney General and shall be binding on both parties.