ADMINISTRATIVE ADMINISTRATIVE REVIEWREVIEW

PPDA Act and Administrative reviewPPDA Act and Administrative review

The Public Procurement and Disposal of Public The Public Procurement and Disposal of Public Assets Act, 2003, sections 89 and 90, provide Assets Act, 2003, sections 89 and 90, provide for Administrative Review.for Administrative Review.

Section 8 (e) mandates the Authority to act upon Section 8 (e) mandates the Authority to act upon complaints by PDEs. providers and any other complaints by PDEs. providers and any other entity or person, in respect of any party to a entity or person, in respect of any party to a procurement and disposal activity, and take the procurement and disposal activity, and take the necessary action. necessary action.

ProcedureProcedure A Bidder, or any other interested person, may A Bidder, or any other interested person, may

seek administrative review of a procurement seek administrative review of a procurement or disposal process due to: or disposal process due to:

Any omission or breach, by a PDE, of the Any omission or breach, by a PDE, of the PPDA Act, the Regulations, or Guidelines, PPDA Act, the Regulations, or Guidelines, made under the Act made under the Act

or of the provisions of bidding documents, or of the provisions of bidding documents, including best practices.including best practices.

Specifically, Sections 8 (c) mandates the Specifically, Sections 8 (c) mandates the PPDA to commission or undertake;PPDA to commission or undertake;

1.1. investigations, investigations,

2.2. institute procurement or disposal contract institute procurement or disposal contract and performance audits or and performance audits or

3.3. investigate complaints by providers. investigate complaints by providers.

Stakeholders Stakeholders

These include among others;These include among others;

1.1. Accounting Officer within the PDEAccounting Officer within the PDE

2.2. Contracts CommitteeContracts Committee

3.3. Evaluation CommitteeEvaluation Committee

4.4. PDUPDU

5.5. PPDAPPDA

6.6. Suppliers Suppliers

Major Sources of Administrative Review Major Sources of Administrative Review ComplaintsComplaints

Administrative review by the bidder;Administrative review by the bidder;

Suspension complaint from Procuring and Suspension complaint from Procuring and Disposing Entity; andDisposing Entity; and

Other complaints( from aggrieved bidders, Other complaints( from aggrieved bidders, public etc)public etc)

Legal Administrative Review Legal Administrative Review ProceduresProcedures

Step 1: A dissatisfied Bidder, or member of the public, gets Step 1: A dissatisfied Bidder, or member of the public, gets his/her complaint resolvedhis/her complaint resolved

A bidder, upon payment of an administrative A bidder, upon payment of an administrative review fee to the PDE (a % of the bid value as review fee to the PDE (a % of the bid value as stipulated in Guideline No. 6 of 2003, on stipulated in Guideline No. 6 of 2003, on administrative review, issued by PPDA), administrative review, issued by PPDA), should, in writing, be addressed to the should, in writing, be addressed to the Accounting Officer of the PDE, within 15 Accounting Officer of the PDE, within 15 working days from the date the he/she first working days from the date the he/she first became aware of the circumstances leading to became aware of the circumstances leading to the complaint.the complaint.

PERIOD FOR RAISING COMPLAINT PERIOD FOR RAISING COMPLAINT

There is a period allowed for raising There is a period allowed for raising complaints. complaints.

when the Notice of intention to award a when the Notice of intention to award a contract has been issued to all the contract has been issued to all the bidders, who participated in the bidding bidders, who participated in the bidding process (S.76 (2) (a) and Reg.224). process (S.76 (2) (a) and Reg.224).

This is before a contract has been signedThis is before a contract has been signed

Write ComplaintWrite Complaint

All complaints to the PDE must be in writing. All complaints to the PDE must be in writing. It must clearly state: It must clearly state: the grounds for the complaint, the grounds for the complaint, should be readable, should be readable, clear and to the point,clear and to the point, quoting sections of the law contravened, quoting sections of the law contravened,

where possible. where possible. It must be signed by the complainant. It must be signed by the complainant.

Addressed as followsAddressed as follows The Accounting Officer The Accounting Officer

Name of the Entity….Name of the Entity….Postal Address….. Postal Address…..

The complainant should be able to indicate The complainant should be able to indicate the grounds for the complaint, the the grounds for the complaint, the anticipated remedy. anticipated remedy.

The letter should be signed by an The letter should be signed by an authorized person.authorized person.

A bidder submits a request for administrative A bidder submits a request for administrative review only after payment of an administrative review only after payment of an administrative review fee to the PDE.review fee to the PDE.

This implies for someone to lodge a complaint This implies for someone to lodge a complaint he/she must have enough evidence to support he/she must have enough evidence to support his/her case.his/her case.

otherwise the fee paid for the review, will have otherwise the fee paid for the review, will have been wasted if the case is frivolous and holds been wasted if the case is frivolous and holds no water. no water.

Step 2: What happens when the Accounting Officer Step 2: What happens when the Accounting Officer

receives the complaint?receives the complaint? On receiving a complaint, the Accounting On receiving a complaint, the Accounting

Officer will investigate it and make a Officer will investigate it and make a decision within 15 working days, indicating decision within 15 working days, indicating the corrective measures to be taken, if any, the corrective measures to be taken, if any, including the suspension of the including the suspension of the proceedings, where he/she deems proceedings, where he/she deems necessary, and giving reasons for his/her necessary, and giving reasons for his/her decision [S90 (2) and (3)]. decision [S90 (2) and (3)].

If the complaint is upheld, the bidder’s If the complaint is upheld, the bidder’s administrative fee is refunded. administrative fee is refunded.

In case a Bidder is dissatisfied with the decision of the AO In case a Bidder is dissatisfied with the decision of the AO

or the AO does not make a decision in the stipulated timeor the AO does not make a decision in the stipulated time If a bidder is dissatisfied with the decision of the AO, the If a bidder is dissatisfied with the decision of the AO, the

bidder may appeal to the Authority. bidder may appeal to the Authority. This should be done within 10 (ten) working days from the This should be done within 10 (ten) working days from the

date of communication of the decision of the AO, or expiry date of communication of the decision of the AO, or expiry of the stipulated time. of the stipulated time.

The bidder is The bidder is notnot required to pay an additional required to pay an additional administrative review fee at this level. administrative review fee at this level.

The appeal can either be mailed or hand delivered.The appeal can either be mailed or hand delivered. If a fax is sent, an original must also be delivered, as If a fax is sent, an original must also be delivered, as

action can only be done on the original. action can only be done on the original.

The onus is on the complainant to ensure The onus is on the complainant to ensure actual delivery of the letter. It should be actual delivery of the letter. It should be addressed to: addressed to:

The Executive DirectorThe Executive DirectorPublic Procurement & Disposal of Public Assets Public Procurement & Disposal of Public Assets AuthorityAuthorityP.0 B0x 3925, KampalaP.0 B0x 3925, KampalaTel: 256 41 311 100, 311 113/26, Fax 256-41-Tel: 256 41 311 100, 311 113/26, Fax 256-41-344 858344 8581 Pilkington Road , 14 th Floor, Workers House. 1 Pilkington Road , 14 th Floor, Workers House.

STEP 3 : Authority receives an appeal from a bidderSTEP 3 : Authority receives an appeal from a bidder

The Authority will promptly give notice of the appeal, to the The Authority will promptly give notice of the appeal, to the AO of the respective PDE, suspending any further action, on AO of the respective PDE, suspending any further action, on the procurement or disposal process, by the PDE until the the procurement or disposal process, by the PDE until the Authority has settled the matter. Authority has settled the matter.

The Authority will also notify all the interested bidders of the The Authority will also notify all the interested bidders of the complaint. complaint.

The complaint is then immediately analyzed and investigated. The complaint is then immediately analyzed and investigated. During the investigation, to uphold the principle of natural During the investigation, to uphold the principle of natural

justice, the Authority normally requests both parties to attend justice, the Authority normally requests both parties to attend any meeting where such parties may need to clarify on some any meeting where such parties may need to clarify on some issues. issues.

The Authority must issue its decision within 21 (twenty one) The Authority must issue its decision within 21 (twenty one) working days [S91] working days [S91]

STEP 4: Authority get back to the stakeholder STEP 4: Authority get back to the stakeholder who lodged the complaintwho lodged the complaint

When investigations are concluded, the When investigations are concluded, the provider will be reached by post or fax, in provider will be reached by post or fax, in less than 48 hours. less than 48 hours.

Possible decision that can be made, by the Possible decision that can be made, by the

Authority, on a received complaintAuthority, on a received complaint

The Authority may dismiss the complaint, if the The Authority may dismiss the complaint, if the complaint is deemed not to hold any water, or complaint is deemed not to hold any water, or PPDA may investigate the complaint fully, if it is PPDA may investigate the complaint fully, if it is felt that there is overwhelming evidence. felt that there is overwhelming evidence.

If the complaint is not dismissed, the Authority can If the complaint is not dismissed, the Authority can prohibit a PDE from taking any further action or prohibit a PDE from taking any further action or annul, in whole or part, any unlawful act or annul, in whole or part, any unlawful act or decision already made by the PDE. decision already made by the PDE.

Reimbursing Administrative Reimbursing Administrative Review FeeReview Fee

The Administrative Review fee is The Administrative Review fee is refundable if the complaint is upheld, refundable if the complaint is upheld, following completion of the Administrative following completion of the Administrative Review process. Review process.

What happens if the complainant is not satisfied What happens if the complainant is not satisfied

with the decision reached by PPDA?with the decision reached by PPDA? The most appropriate way to handle the complaint, The most appropriate way to handle the complaint,

after this far, is for the provider to lodge his complaint after this far, is for the provider to lodge his complaint to the Inspector General of Government (IGG) for to the Inspector General of Government (IGG) for further investigation. further investigation.

Actually, the IGG will not accept any complaint that Actually, the IGG will not accept any complaint that has not gone through the above process unless it is has not gone through the above process unless it is one of outright corruption. one of outright corruption.

All the latter cases go straight to the IGG. PPDA has All the latter cases go straight to the IGG. PPDA has an arrangement with the IGG on this procedure. an arrangement with the IGG on this procedure.

Failure to be satisfied with the IGG’s decision, the Failure to be satisfied with the IGG’s decision, the bidder may go either for arbitration or to the courts of bidder may go either for arbitration or to the courts of law. law.

Options in case aggrieved party is not satisfied with Options in case aggrieved party is not satisfied with PPDA decision PPDA decision

Complainant can sue the PDE in courts of law for such a Complainant can sue the PDE in courts of law for such a breach of procedure.breach of procedure.

However, the Authority advises the public that this However, the Authority advises the public that this method of conflict resolution should be used only after method of conflict resolution should be used only after dialogue and peaceful negotiations have been exhausted. dialogue and peaceful negotiations have been exhausted.

Moreover, parties are further advised to go for conciliation Moreover, parties are further advised to go for conciliation and/or arbitration before one can opt for the protracted and/or arbitration before one can opt for the protracted and costly litigation.and costly litigation.

Otherwise, it is expected that if a bidder follows the Otherwise, it is expected that if a bidder follows the established administrative review procedure, his/her case established administrative review procedure, his/her case will be resolved very fawill be resolved very fast, cheaply and the matter will st, cheaply and the matter will remain private. remain private.

In case a member of the public or any other person (whistle In case a member of the public or any other person (whistle blower) is concerned about anything going wrong, but was blower) is concerned about anything going wrong, but was

never involved in the Procurement or Disposal Process, and never involved in the Procurement or Disposal Process, and wants to report it to PPDA?wants to report it to PPDA?

A person who has anything to report on, about any omissions A person who has anything to report on, about any omissions or commissions of the public procurement or disposal process or commissions of the public procurement or disposal process by a PDE, should contact the Executive Director, PPDA at any by a PDE, should contact the Executive Director, PPDA at any time, during working hours. time, during working hours.

He/she must be willing to identify him/herself and offer more He/she must be willing to identify him/herself and offer more information and evidence of the wrongdoing in the respective information and evidence of the wrongdoing in the respective PDE.PDE.

His / her identity however, remains confidential to the public.His / her identity however, remains confidential to the public.

CASE STUDY CASE STUDY