Public Procurement and Disposal of Public Assets (Administrative Review) Regulations

These Regulations may be cited as the Public Procurement and Disposal of Public Assets (Administrative Review) Regulations, 2023.

These Regulations shall come into force on the 5th day of February, 2024.

A bidder who is aggrieved by a decision of a procuring and disposing entity may make a complaint in writing, to the Accounting Officer of the procuring and disposing entity.

A bidder may seek administrative review of any omission or breach by a procuring and disposing entity, of the provisions of the Act, regulations or guidelines made under the Act or any provision of the bidding documents.

The complaint made under these Regulations shall indicate- (a) the name and contact details of the bidder or the person representing the bidder; (b) the procurement or disposal requirement to which the complaint relates; (c) the substantive and factual grounds of the complaint, including- (i) the provision of the Act or of regulations or guidelines made under the Act which is the subject of the breach or omission by the procuring and disposing entity; and (ii) where known, the names of the person involved in the subject of the complaint, the events and the facts that constitute the complaint; (d) the corrective measures, requested by the bidder in accordance with the law; (e) the documentary evidence and any other evidence, relevant to the complaint, that is in the possession of the bidder; and (f) any other information relevant to the complaint.

A complaint against a procuring and disposing entity shall be made within ten working days after the date the bidder first becomes aware or ought to have become aware of the circumstances that gave rise to the complaint.

The procuring and disposing entity against which a complaint is made shall on request provide the bidder with a report indicating the reasons for the rejection of the bidder and the stage at which the bidder was rejected and the report shall be used only for the administrative review process.

The Accounting Officer shall, on receiving the complaint, immediately suspend the procurement or disposal process, as the case may be.

Where bid validity or the bid security is to expire before the expiry of the period prescribed in section 89 (7), for communicating a decision of the administrative review process, the Accounting Officer shall request the bidders to extend the period of the bid validity and bid security for the duration of the suspension.

An Accounting Officer shall not investigate a complaint where- (a) the complaint does not fulfil the requirement of regulation 4; (b) the complainant is not a bidder in respect of the procurement or disposal proceeding for which the complaint is made; (c) a complaint is not in respect of any procurement or disposal proceeding; or (d) the complaint is not in respect of an omission or breach by the procuring and disposing entity, of the Act, regulations made under the Act, guidelines issued under the Act or a provision of a bidding document.

A complaint that does not fulfill the requirements of subregulation (1) shall be dismissed by the Accounting Officer without investigation.

Where the Accounting Officer dismisses a complaint, the Accounting Officer shall in writing notify the bidder of the dismissal.

An Accounting Officer shall not investigate a complaint where the fees for administrative review prescribed under regulation 10 are not paid to the procuring and disposing entity.

A bidder may make an application to the Tribunal in accordance with Part VIIA of the Act where-

Where a bidder intends to make an application to the Tribunal under subregulation (1), the bidder shall give the Accounting Officer notice within five working days after the expiry of the period specified in regulation 4(4) or regulation 8, as the case may be.

Where a bidder makes an application to the Tribunal, the procurement or disposal process that is suspended under regulation 5 shall remain suspended until the Tribunal makes a decision.

For the avoidance of doubt an Accounting Officer shall not enter into a contract with a provider- (i) during the administrative review period; (ii) before the expiry of the time period required for giving notice under subregulation (2); or (iii) where the matter is referred to the Tribunal, before the Tribunal makes a decision.

Notwithstanding this regulation and regulation 4, where a bidder believes that the Accounting Officer has a conflict of interest in respect of a complaint, omission or breach or that matter cannot be handled impartially by the procuring and disposing entity, the bidder may make an application to the Tribunal under section 91I (1) (c) of the Act.

A person making a complaint under these regulations shall pay fees for administrative review.

For the purposes of subregulation (1), a person who makes a complaint shall pay to the procuring and disposing entity, for a procurement or disposal of a value specified in the first column of the Schedule, the fees in the second column of the Schedule.

Where the Accounting Officer upholds a complaint, the fee shall be refunded to the person who makes the complaint.

Where a complaint is withdrawn or is dismissed by the Accounting Officer, the fee shall not be refunded to the person who makes the complaint.

The Public Procurement and Disposal of Assets (Administrative Review) Regulations, 2014 are revoked.

An administrative preview process that had commenced under the Public Procurement and Disposal of Public Assets (Administrative Review) Regulations, 2014 and the Local Governments (Public Procurement and Disposal of Public Assets) Regulations, 2006 shall be continued and completed under these Regulations.