COMPLAINTS & ADMINISTRATIVE REVIEW
EDITORIAL
The Due Process and Price Intelligence Bureau (DPPIB) is the regulatory body for Public Procurement in Cross River State. It was established through the Cross River State Public Procurement Act No. 15 of 2011.Section 5(i) of the Act State Inter-alia that “There is established for the State an Agency known as the Cross River State Due Process and Price Intelligence Bureau regulations.regulations.
Whereas Section 12 of the Procurement Act deals with the functions of the Bureau,Section 13 deals with the powers for which the Bureau can invoke, to function effectively. Specifically, Section 13 (1) (K) of the Act provides the platform from which the production of the Basic Guide to Vendors complaints and Administrative Review is
anchored in conjunction with Section 19 which deals with Regulations.
The DPPIB Act applies to all Ministries, Departments, Agencies and any other body or unit established and mandated by Government to carry out Public functions or any Entity which uses public funds.
In carrying out business for and on behalf of Government, Procurement entities,Suppliers, Contractors or Consultants often tread through mi sunder standings in the procurement cycles, sometimes leading to unhealthy conflicts.
One sure and effective way that these conflicts can be reduced or eliminated is for government to show commitment to ameliorating the threats of conflicts in procurement by fashioning out clear cut mechanism where grievances/complaints by Vendors or consultants can be initiated, pursued and addressed through a transparent and accepted administrative review mechanism.
This reform is based on the premise that effective implementation of the public procurement reforms cannot be complete without a review mechanism which will eliminate undue excesses from procurement entities and frivolous complaints and uncontrolled excitement by Vendors, hence the production of this module.
Procurement Entities, Officers, vendors, suppliers, consultants and the General Public as well as other critical stakeholders are enjoined to avail themselves of this module and make the best use of it.
PUBLIC PROCUREMENT COMPLAINTS REVIEW MECHANISM
The Due Process & Price Intelligence Bureau (DPF’IB) Act provides an effective system for the handling of all complaints related to public procurement in Cross River State by virtue of section 13(1)(k) of the Act. This module services as a regulation on grievance proceedings for contractors and consultants desirous of seeking redress arising from perceived unjust treatment in award of contracts in the State.
RIGHT TO REVIEW:
Any contractor, vendor or consultant that claims to have suffered, or is likely to suffer loss or injury due to a breach of a duty imposed on the procuring entity by this Act, may seek review in accordance with this part.
COMPLAINTS:
A. COMPLAINTS FROM THE GENERAL PUBLIC:
Any member of the public can freely contact the DPPIB about any wrong doing in a Ministry, Department or Agency even if he/she was never involved in the procurement or disposal process. However he/she must be willing to identify him/herself confidentially and offer the necessary information or evidence of the wrong done.
B. COMPLAINTS FROM DISSATISFIED BIDDERS OR PROVIDERS:
A bidder may seek administrative review against a Procuring Entity for any omission or breach of the procurement Act, Regulations, Guidelines and provisions contained in the bidding document.
A bidder should submit his/her application for an administrative review to the Accounting Officer of the procuring entity in question within 15 working days from the date he/she became aware of the issue at hand and send a copy to the Bureau.
REQUIREMENTS FOR AN ADMINISTRATIVE REVIEW:
The application for administrative review should include:
a. Details of the procurement requirement to which the complaint relates.
b. Details of the rule or provision which has been breached or omitted.
c. An explanation of how the rule or provision has 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. Bidders seeking administrative review are required to pay an administrative fee which should be 5% of the bid value where the contract value is known or a stated amount for pre-contract complaints.
There are three levels in which redress can be pursued, which are as follows:-
(1) Upon dissatisfaction with either the bidding process or contract awards, bidders must register their complaints first with the accounting officer of the procuring unit as the first level of complaint and seek redress. Where the Accounting Officer fails to make a decision within the stipulated time (15) working days). or the bidder is dissatisfied with the decision of the Accounting Officer of the Procuring Unit for any good reason, the bidder can go to the second level;
(2) A bidder may appeal to the Director General of DPPIB within 10 working days from the date the Accounting Officer communicates his/her decision or upon expiry of the stipulated time. The bidder is not required to pay any additional fee at this stage. The Bureau MUST issue its decision within 21 working days and notify the complainant of its decision.
(3) A complainant or bidder can appeal to any other competent Authority(s) incase he/she is not satisfied with the decision reached by the Bureau, as the third level and final level to the Court etc.
PROCEDURES:
(1) A Contractor, vendor, supplier or consultant entitled to seek review may submit a complaint to the Bureau with details of the requirement earlier stated within twenty one days after
(i) The supplier, contractor or consultant became aware of the circumstances giving rise to the complaint; or
(ii) The supplier, contractor or consultant ought to have become aware of those circumstances,
(a) If the complaint cannot be submitted under review by a procurement entity because of the entry into force of the procurement contract.
(b) If the head of the procurement entity does not entertain the complaint because the procurement contract has been entered into force, and the complaint is submitted within twenty one days after the issuance of the decision not to entertain the complaint.
(c) If the supplier, contractor or consultant claims to be adversely affected by a decision of the head of the procurement entity and the complaint is submitted within twenty (20) days after the issue of the
decision.
(2) Upon receipt of a complaint, the Bureau shall give notice of the complaint promptly to the procurement entity.
(3) The Bureau may,
(a) declare the legal rules or principles that govern the subject matter of the complaint.
(b) order that the provisions of the procurement Act be complied with;
(c) Annul in whole or in part an illegal act or decision of the procurement entity,other than any act or decision bringing the procurement contract into force;
(d) Revise an illegal decision by the procurement entity or substitute its own decision for the decision other than any decision bringing the procurement contract into force:
(e) Require the payment of compensation for reasonable cost incurred by the supplier or contractor who submitted the complaint, in connection with the procurement proceedings as a result of an illegal decision of, or procedure
followed by the procurement entity;
(f) Order that the procurement proceedings be terminated;
(g) Dismiss the complaint and require the payment of compensation for reasonable cost incurred by the procurement entity or the Bureau.
(4) The Bureau shall, within twenty-one days of starting a review, issue a written decision concerning the complaint, stating the reasons for the decision.
BASIC RULES APPLICABLE TO REVIEW PROCEEDINGS:
(a) The head of a procurement entity or the Bureau shall notify the suppliers,contractors or consultants participating in procurement proceedings about the submission of a complaint and of its substance within 14 working days after the submission of the complaint for review.
(b) A supplier, contractor or any Government Authority whose interests are or could be affected by the review proceedings is entitled to participate in the review proceedings.
(c) A supplier, contractor or consultant who fails to participate in the review after due notification is bared from subsequently making the same type of claim.
(d) A copy of the decision of the head of the procurement entity or of the Bureau shall be furnished within five (5) days after the issue of the decision to the supplier,contractor or consultant submitting the complaint to the procurement entity and to any other supplier, contractor or government authority that has participated in the review proceedings.
(e) After the decision has been taken, the complaint and the decision shall be promptly made available for inspection by the general public, but no information shall be disclosed if its disclosure would be contrary to law, would impede law enforcement,would not be in the public interest, would prejudice legitimate commercial interest of the parties or would inhibit fair competition.
SUSPENSION OF PROCUREMENT PROCEEDINGS:
(1) Where review proceedings are initiated, the procurement proceedings may be suspended for 7 days if the complaint
(a) is not frivolous;
(b) Contains a declaration which demonstrates that the supplier, contractor or consultant will suffer irreparable damage if the suspension is not granted; and
(c) is likely to succeed; and the grant of the suspension will not cause disproportionate harm to the procurement entity or to other suppliers, contractors or consultants.
(2) Where the procurement contract enters into force, upon the submission of a complaint, performance of the procurement contract shall be suspended for seven days, if the complaint meets the requirements earlier stated.
(3) The head of the procurement entity and the Bureau may extend the suspension in order to preserve the rights of the supplier, contractor or consultant who is a party to the review pending the disposition of the review proceedings, but the total period of suspension shall not exceed thirty days.
(4) The suspension provided for by this section shall not apply if the procurement entity certifies that urgent public interest considerations requires that the procurement should proceed.
(5) The certification shall state the grounds for the findings that urgent consideration exist and shall be made a part of the record of the procurement proceedings and it is conclusive with respect to the administrative review.
(6) Any decision by the procurement entity under this section and the grounds and circumstances shall be made Part of the record of the procurement proceedings.
