Review proceedings

Relevant authorities

Which authorities may rule on review applications? Is it possible to appeal against review decisions and, if so, how?

The first authority that may rule on review applications is the accounting officer within the contracting authority. The accounting officer may constitute an independent review panel from within or outside the contracting authority to advise him or her on the appropriate actions to be taken. The decision of the accounting officer may be appealed to the Appeals Authority. The decision of the Appeals Authority may be subjected to a judicial review at the High Court. A decision of the High Court may be appealed to the Court of Appeal.

Timeframe and admissibility requirements

How long do administrative or judicial proceedings for the review of procurement decisions generally take?

The timelines for decision-making are as follows:

  • complaint to accounting officer of the contracting authority: within 14 days after the submission of the complaint, as provided under section 96(6) PPA;
  • Appeals Authority: within 45 days of receiving the complaint of a dispute, as provided under section 97(6) PPA;
  • judicial review: applications for leave to file an application for judicial review must be determined within 14 days, as provided under r.5(4) of the JR Rules. However, in our experience, a judicial review itself takes one to three years, but the law does not provide any timing; and
  • court of appeal: the law is silent on timing, but, in our experience, decisions follow one to six years from the date of filing a notice of appeal.

What are the admissibility requirements?

Complaints or disputes to the accounting officer

Under r.96(1) of the PR, the accounting officer at the contracting authority has the power to review any complaint or dispute between the contracting authority and bidders. No exhaustive list of issues has been provided. The only restriction is that the accounting officer cannot entertain any complaints or disputes after the procurement contract has entered into force. No format for the complaint or dispute is provided for under the law.

Complaints or disputes to the Public Procurement Appeals authority (appeals authority)

Under r.97 of the PR, a tenderer who is aggrieved by the decision of the accounting officer may appeal to the Appeals Authority. The Appeals Authority also has the power to hear the following complaints or disputes:

  • acceptance or disqualification of a tender;
  • award or proposed award of contract;
  • inclusion of unacceptable provisions in the tender documents;
  • unacceptable tender process or practice;
  • decision, act or omission of a contracting authority;
  • blacklisting of a tenderer;
  • rejection of all tenders; or
  • any other matter that the Appeals Authority may deem appealable.

An appeal is instituted by submitting a notice of appeal in the form PPAA Form No.1, as set out in the first schedule to the PPAA Rules, followed by a statement of appeal by submitting PPAA Form No. 2 (annexed to the same schedule of the PPAA Rules).

Judicial review to the High Court

The judicial review process is initiated by filing an application for leave to apply for administrative orders; namely, mandatory, prohibition or the quashing of a decision. Following leave being granted, the application for judicial review must be filed.

The application for leave must be in the format set out in Form A, as in the first schedule to the Review Rules.

Court of Appeal

The decision of the High Court can be appealed to the Court of Appeal if the decision from the High Court erred in the application or interpretation of law. The bidder cannot challenge issues of fact at the Court of Appeal. In order to appeal the decision of the High Court, the aggrieved bidder must follow the following steps:

  • file a notice of appeal within 14 days of the decision;
  • simultaneously file an application seeking leave to appeal within 14 days of the High Court decision; and
  • file the memorandum and record of appeal within 60 days of leave to appeal being granted.

What are the time limits in which applications for review of a procurement decision must be made?

The time limits for applications for instituting review or appeals are as follows.

Complaints or disputes between contracting authority and bidders, arising in respect of procurement proceedings, disposal of public assets by tender and awards of contracts, must be made within 28 days from the date of the tenderer submitting it became aware of the circumstances giving rise to the complaint or dispute, or when that tenderer should have become aware of those circumstances, whichever is earlier (s. 96(4) PPA).

Complaints or disputes regarding decisions of the accounting officer must be filed within 14 working days from the date of communication of the decision (s.97(2) PPA).

If a bidder is aggrieved by a decision of a contracting authority, but the contracting authority has already entered into a contract with the preferred bidder, the accounting officer within the contracting authority no longer holds a mandate to resolve any disputes arising from the bidding process. In such circumstances, an aggrieved bigger can refer their dispute directly to the Appeal Board. The appeal must be lodged within 14 days of the aggrieved bidder becoming aware of the events forming the grounds of his or her grievance.

Suspensive effect

Does an application for review have an automatic suspensive effect blocking the continuation of the procurement procedure or the conclusion of the contract?

Section 100 of the PPA provides that when a complaint or dispute has been received, the accounting officer must suspend the procurement process, pending determination of a complaint or appeal. No suspension shall occur if the contracting authority certifies to the PPRA that there is an urgent public-interest consideration that requires the procurement to proceed. The Appeals Authority also has the power to suspend the procurement procedure, except where there is a public- interest certificate in place.

Approximately what percentage of applications for the lifting of an automatic suspension are successful in a typical year?

In the system currently in place, when an automatic suspension is triggered it remains in force, unless there is a valid public-interest certificate in place. In our review of the decisions submitted to the Appeals Authority, there has been no successful lifting of a public- interest certificate issued by a contacting authority.

Disadvantaged bidders

Is it customary for disadvantaged bidders to file review applications?

It is not very commonplace for disadvantaged bidders to file review applications. This may be because of the lack of knowledge of the procedure or the time and cost involved in following up on a review filed with the Appeals Authority. According to the Appeals Authority report for the year 2016/2017, there were 44 appeals filed and for the year 2017/2018 there have been 30 appeals filed.

Violations of procurement law

If a violation of procurement law is established in review proceedings, can disadvantaged bidders claim damages?

No. The Appeals Authority only has the power to award compensation to a disadvantaged bidder under section 97(5)(f) of the PA for the expenses incurred because of the unlawful actions of the contracting authority. This position was provided in Appeal Case No. 35 of 2013-2014 M/s Kihelya Auto Tractor Parts Company Limited and Tanzania Ports Authority before the Public Procurement Appeals Authority.

May a concluded contract be cancelled or terminated following a review application of an unsuccessful bidder if the procurement procedure that led to its conclusion violated procurement law?

The Appeals Authority does not have the express power to cancel or terminate a concluded contract. The Appeals Authority has the power to annul, in whole or in part, an unlawful act or decision of the contracting authority. The Appeals Authority has used this power to nullify a tender process in respect of a concluded contract. This had the effect of terminating the agreement that was deemed to have been made illegally.

Typical costs

What are the typical costs of making an application for the review of a procurement decision?

There are no fees for filing claims with the Accounting Officer. The fees for filing other claims and applications for appeals or judicial reviews are:

Appeal Board

  • Notice of appeal: 50,000 shillings; and
  • statement of appeal: 150,000 shillings.

High Court or Court of Appeal (leave to appeal)

  • High Court - main registry: 100,000 shillings; and
  • High Court - commercial division: 300,000 shillings.

Judicial reviews (leave to apply)

  • High Court - main registry: 100,000 shillings;
  • High Court - commercial division: 300,000 shillings;
  • Court of Appeal - notice of appeal: 8,000 shillings; and
  • Court of Appeal - record and memorandum of appeal: 165,000 shillings.

The fees set out above are filing fees alone, exclusive of counsel fees for representation. The filing fees for the High Court and Court of Appeal can vary depending on the volume of documents submitted.

* The content of this chapter is accurate as at April 2018.