Managing grievances in procurement

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OPINION

By Cris Magoba

The process by which the Government acquires goods and services, also known as public procurement, is an important undertaking in any country’s development agenda. Governments and agencies like the World Bank and the UN endeavour to do public procurement with efficiency for quality service delivery.

Public procurement is considered effective and efficient if contracts are awarded in accordance with the laws, notably the PPDA Act, Cap 205. When there is deviation from the law, there is a complaints’ handling mechanism. This mechanism is referred to as the administrative review.

The Act, under Section 106, explains how “a bidder who is aggrieved by a decision of a procuring and disposing entity may make a complaint to the accounting officer”.

To jog our memory, the accounting officer (AO) is that person appointed by the permanent secretary/Secretary to the Treasury to manage public funds in a particular government entity. The most widely known AOs are permanent secretaries for ministries, chief administrative officers (CAO) for districts and town clerks for cities and municipalities.

Prior to July 2021, the complaints process was three-tiered. The dissatisfied bidder would complain to the AO, then the PPDA and ultimately the PPDA Appeals Tribunal.

To dispose of the bidders’ complaints, the AO had 15 working days, the PPDA had 21 working days and the tribunal had 10 working days.

However, owing to delays occasioned by these tiers, the 2021 amendments of the Act provided for a two-tiered procedure, to wit; the AO and the PPDA Appeals tribunal. It should be noted that even when these two tiers are exhausted, the law still allows further appeal to the High Court in line with Section 118 of the PPDA Act.

However, the appeal to the High Court is strictly on the question of law. Parties can only appeal to the High Court where the tribunal got the relevant law wrong or applied it wrongly in arriving at its decision. And if the appeal is upheld, the petitioner will be compensated. In other words, the decision of the PPDA Appeals Tribunal determines the fate of the procurement process.

The tribunal’s decisions may include allowing the procurement process to proceed, cancellation of the procurement process, orders for revaluation of the bids or making an order to costs against any party.

Furthermore, the decision or order of the High Court on public procurement is conclusive and cannot be subjected to appeal in any other court. Thus, there is a clear procedure to address procurement grievances. However, the framers of the law, were mindful of the possibility of interminable complaints. Thus, the law provides for timelines so that service delivery is not mired in endless complaints. According to the law, an aggrieved bidder, must within 10 working days, file a complaint to the AO. The AO also has 10 days to make and communicate a decision to the complainant.

For appeals to the tribunal, the complainant has 10 working days from the date of receipt of the decision of the AO. And the tribunal has a period of not more than 15 working days to make a decision on an appeal filed before it. And thus, the period for the complaints handling was reduced from 46 to 25 working days. These timelines are meant to hedge against time wasting. When action is taken outside the timelines specified in the law, there are two scenarios.

The complaint will be outrightly dismissed without giving any consideration of its merits. Secondly, if an AO or tribunal make a decision outside the prescribed period, that decision will be null and void. A mistake some bidders make is to wait for the AO to deliver a decision before appealing to the tribunal. When the AO defaults on adherence to the timelines, the law provides for the aggrieved bidder to petition the tribunal irrespective of what the decision of the AO will ultimately be.

A recent High Court ruling by Justice Esta Mbayo is an interesting read about this subject. The case involved a complaint, Eclipse Edisoil JVC Limited (EEJL), a bidder for the construction of seed secondary schools in Abim and Napak Districts. EEJL were dissatisfied with the procurement process and filed a complaint to the AO on November 15, 2023. The AO delivered the decision after 16 days on December 7, 2023, clearly outside the timeline provided by law.

EEJL disagreed with the decision of the AO and, on December 12, 2023, filed an appeal with the PPDA Appeals Tribunal. The tribunal dismissed the appeal on grounds that it was time barred. EEJL appealed to the High Court asserting that the tribunal erred by not giving consideration to the merits of the complaint.

Court dismissed the appeal and concurred with the tribunal because the bidder waited for the decision of the AO, (which decision came outside the timelines), before filing the appeal to the tribunal.

The writer is the manager, public relations with Public Procurement and Disposal of Public Assets Authority