REGULATORY AND COMPLIANCE LAW UPDATE: DISPUTE SETTLEMENT PROCEDURE IN PUBLIC PROCUREMENT IN TANZANIA
- Unpacking the legal regime that governs Public Procurement in Tanzania
- Review of Complaints and Procurements Decisions under the Public Procurement
- Stages of dispute resolution at the Procuring entities in Tanzania
- The rights of the parties to challenge the decision of the Procuring Entities in Tanzania
- Judicial review by the High Court applicability in the dispute settlement process.
- The Public Procurement Regulatory Authority (PPRA) is a regulatory body established under the Public Procurement Act CAP 410 as repealed by the Public Procurement Act No.7 of 2011.The Authority is charged with regulatory functions and vested with oversight powers and responsibilities on all public procurement activities carried by all public bodies in the mainland Tanzania.
- The legislative framework of Tanzania also includes sub-legal and sector specific acts, which spell out the rules and procedures of public procurement activities in Tanzania. Among them most important sub-legal enactments are:
• Public Procurement Regulations 2013;
• Public Procurement (Amendments) Regulations 2016;
• Law Reform (Fatal Accidents and Miscellaneous Provisions) Act Cap 310R.E 2002;
• Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules 2014 (JR Rules);
• Public Procurement Appeals Rules 2014 (PPAA Rules).
- In Tanzania, the public procurement law applies to any ministry, department or agency of the government, in addition to any corporate or statutory body or authority established by the government. Public procurement law also covers state-owned companies (public corporations) and local government authorities in the form of municipal councils, city councils etc.
- Our Procurement department at Breakthrough Attorneys has prepared this summary of the procedures for Dispute Settlement Procedure in Public Procurement in Tanzania for purposes of raising awareness to the public and highlighting important timeline of filing the complaints.
2.0 Process of Filing an Administrative Review before a Procuring Entity (PE)
- We need to underscore from the outset that anyone who is aggrieved by the decision of the procuring entity, be it disqualification, rejection of a tender, intention to award a tender to a certain tenderer etc. has a right to appeal against the said decision.
- The Public Procurement Act, No. 7 of 2011 allows 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 to seek a review in accordance with Sections 96 and 97(2).
- 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. As mentioned in paragraphs 2.1 and 2.2 above, Administrative Review is a Complaint to the Accounting Officer which has to be filed within Seven working days (Section 95 of the Act read together with Regulation 104 of the Regulations as Amended). The content of the Administrative Review is under Regulation 106 (3) of the Regulations are;
(a) details of the procurement or disposal requirements to which the complaint relates;
(b) details of the provisions of the Act, Regulations or provisions that have been breached or omitted;
(c) 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;
(d) documentary or other evidence supporting the complaint where available;
(e) remedies sought; and
(f) any other information relevant to the complaint. any public procurement system.
- There is no specific form of the Complaint provided in the law. When the Accounting Officer received the compliant, he should reply to the same within Seven working days. The Decision shall contain the reasons of the rejections. Furthermore, if the tenderer is not satisfied with the decision of the Accounting Officer, he may wish to Appeal at the Public Procurement Appeals Authority.
3.0 Procedures and Timeline for Appealing at Public Procurement Appeals Authority;
- 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 seven 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. One of the most positive aspects of this body is that besides the representatives of the public authority five other members take part in the dispute settlement. At least two of them must be from the private sector with professional knowledge and experience in public procurement, construction industry, business administration, finance or law. Hence, public engagement in dispute settlement is ensured by the PPAA.
Section 97 of the Act and Regulation 107 of the Regulations provides that;
“A tenderer who is aggrieved by the decision of the accounting officer may refer the matter to the Appeals Authority for review and administrative decision”.
- In the light of the above, the tenderer can file an Appeal at PPAA in a prescribed Form No. 1. The documents which can accompany the Statement of Appeal are the documents which can help/support the Appeal. The Statement of Appeal has to be filed within Seven working days, if the Appeal is not filed within the Seven working days then one has to apply for the Extension of time that to within Seven working days. (Section 98 of the Act). PPAA will serve the copy of the Statement of Appeal to the Respondent. The Respondent may wish to reply, and the time for the hearing is fixed.
- The procedure of hearing at PPAA is slightly different from the normal Courts, the hearing is only for one day and the Ruling is delivered within less than 10 days. If an economic operator deems the decision of the Appeals Authority to be unsatisfactory, then the third stage may be subjected to a judicial review at the High Court. A decision of the High Court may also be appealed to the Court of Appeal.
4.0 Procedures and Timeline for Appealing for the Judicial Review at the High Court;
- Judicial review is an important weapon in the hands of the judges of this country by which an ordinary citizen can challenge an oppressive administrative action. And judicial review by means of prerogative orders (certiorari, prohibition and mandamus) is one of those effective ways employed to challenge administrative action.
- Judicial Review is provided under Section 101 of the Act which states;
“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”.
- Judicial Review has to be filed within 14 days from the date the tenderer received the ruling. Timeline is of utmost important when filing any matter at PPAA. Apart from the Section mentioned above Section 17 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act and Section 2 of the Judicature and Application of Laws Act [CAP 538, R.E. 2002] provides that High Court of Tanzania has jurisdiction to determine the cases of prerogative orders.
- It is important to note that It is a mandatory requirement to seek leave of the court before applying for Prerogative Orders. This is evident under Rule 5 (1) of the Law Reform (Fatal Accidents and Miscellaneous Provision) (Judicial Review Procedure and Fees) Rules, 2014. An application for leave is required to be heard and determined within 14 days as per Rule 5 (4) of the Rules. Section 19 (3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap. 310 of the Revised Edition, 2002 and Rule 6 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 – GN No. 324 of 2014, state that the application for leave to file application for judicial review must be filed within six months after the proceedings, act or omission intended to be impugned was given.
- However, when the appeal is brought from PPAA then we must adhere to the rules which are provided under the PPAA act and Regulations therefore, the scenario of six months shall not be applicable if the Appeal is from PPAA. The application for the leave to file Judicial Review is made under Chamber Summons, supported by Affidavit and Statement. Rule 5 (2).
- Upon being granted leave to apply for prerogative orders, the next step will be to actually apply for Prerogative Orders which must be done within 14 days after leave has been granted as provided for under Rule 8 (1) of the Law Reform (Fatal Accidents and Miscellaneous Provision) (Judicial Review Procedure and Fees) Rules, 2014. The Application will be made under Chamber summons and Supported by the Affidavit (Rule 8 (a) of the Rules).
In the nutshell, any tenderer who is aggrieved by the decision of the tender board they have the rights to ask for the reasons/explanations for the rejection and if they are not satisfied with the decision of the tender board, they can file a complaint/Administrative Review. Tenderers have an option that if they are not satisfied with the decision of the Accounting officer then they can file an Appeal at PPAA, however it is important to note that the time lines and the procedures are followed because the panel are very keen at looking at the technicalities therefore the tenderer should make sure that all the documents are in place so as to be knock out on the ground of technicalities. Furthermore, there is always a room for filing for judicial review at the High Court as explained above.
This publication has been prepared for information purposes only, and it does not constitute professional advice. You should not act upon the information contained in this publication without obtaining specific professional advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication, and, to the extent permitted by law, Breakthrough Attorneys, its members, employees and agents do not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in this publication or for any decision based on it.