Chronicle Editor
SECTION 76 of the Public Procurement and Disposal of Public Assets Act [Chapter 22:23] speaks to the process known as a review that considers the challenge brought forward by an aggrieved bidder towards a procuring entity’s procurement process. The review is a hearing where the panel makes the appropriate written decision on the matter.
The written decision must set out its reasons within fourteen days after the application for review of the procurement proceedings concerned was received by the Authority.
The procedure to be adopted by a review panel shall be as prescribed or, in relation to any matter that is not prescribed, as may be fixed by the panel, provided that the panel shall afford the parties to the challenge an adequate opportunity to make representations in the matter and, generally, shall observe the rules of natural justice.
Important to note is that the decision of a review panel shall be binding on the bidder that lodged the challenge to a procurement process of the procuring entity and the procuring entity whose proceedings are the subject of the challenge.
There are various grounds that a review panel shall use to dismiss a challenge. Top among these is that for a challenge to be entertained the bidder lodging the challenge in their written submission must identify the specific act or omission they are alleging the procuring entity allowed to happen. Further a security of costs must be deposited by the bidder to the procuring entity, the amount to be deposited is an amount that can be calculated from the amount of the total contract price as found in the Third Schedule: Security and Fees for Challenges which is found in the PPDPA (General) Regulations. In addition, if the written statement for the grounds of lodging the challenge is vague or embarrassing or the grounds of the challenge are frivolous therefore do not constitute a valid basis for a challenge and where the bidder that lodged the challenge has failed to establish the grounds for the challenge.
The review panel in its decision may order the bidder to compensate the procuring entity any loss or expense that may occur due to the challenge. Important to note is that where the review panel finds that the grounds that were put forward by the bidder are valid grounds for the challenge the panel may prohibit the procuring entity from reaching any decision or doing anything in an unauthorised manner or from following incorrect procedure or annul in whole or in part any unauthorised act or decision of the procuring entity, other than an act or decision bringing the procurement contract into force or order the procuring entity to begin the procurement proceedings afresh or award damages to the bidder to compensate for any loss he or she has suffered.
If the review panel orders compensation to be paid to a procuring entity or damages to be paid to a bidder the procuring entity or the bidder, as the case may be, may register a copy (certified by the chairperson of the panel) of the panel’s award, with the clerk of the magistrates’ court so as the award may be enforced as if it were a judgment of a magistrate of that court.
At any stage after a review panel has been appointed and before it delivers its decision, the panel may, upon the lodging of a challenge, cancel the automatic suspension of the procurement proceedings imposed by section 74 (4), if the procuring entity satisfies the panel that continuation of the suspension would cause disproportionate harm to the public interest, to the procuring entity or to other suppliers and contractors.
A bidder or a procuring entity aggrieved by a decision of a review panel if they so wish may appeal against the decision to the Administrative Court within twenty days after the panel’s decision being notified to the party concerned. However, it must be noted such an appeal to the Administrative Court shall not set aside the decision of the review panel but may award fair and adequate compensation to the appellant for any patrimonial loss or damage the appellant may have suffered.
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