Review proceedings
Competent review bodies
Which bodies are competent to review alleged breaches of procurement legislation? Is it possible to appeal against a review body’s decisions?
A complaint shall in the first instance be submitted to the head of the procurement entity within 20 days of the complainant becoming aware of the circumstances giving rise to the complaint. The procurement entity is required to make a decision within 21 days of the submission of the complaint.
The complainant may make an application to the Public Procurement Authority (the Authority) to review the decision of the procuring entity or make an application directly to the Authority if the procuring entity has not made a decision within the 21-day period. The decision of the Authority is subject to review by a court of competent jurisdiction. The Public Procurement (Amendment) Act 2016 (Act 914) (the Amendment Act) exempts decisions of decentralised departments or agencies from this further review by the Authority. The Constitution and the Local Governance Act 2016 (Act 936) requires that local government assemblies (metropolitan, municipal and district assemblies) are the highest decision-making bodies at the local government level. In line with that, the Amendment Act removes any power of administrative review of procurement decisions of decentralised departments and agencies and provides that such decisions can only be challenged in a court of law.
Time frame and admissibility requirements
How long do administrative or judicial review procedures generally take?
An initial complaint to a head of a procuring entity and any subsequent review by the Authority is to be concluded within 21 days in each instance. The duration of an appeal before a court of competent jurisdiction will depend on the complexity of the case and the applicable procedural rules of the civil court.
What are the admissibility requirements for an application to review a contracting authority decision?
Any bidder that alleges to have incurred a loss, or asserts the likelihood of an impending loss, due to a breach of a duty imposed on the procurement entity, may seek a review.
The Public Procurement Act 2003 (Act No. 663) (the Act), however, states that the selection of a method of procurement and the choice of a selection procedure shall not be subject to review. The Amendment Act also seeks to restrict this prohibition by providing that the selection of a method of procurement and the choice of selection procedure can be challenged where inappropriate procedures have been applied.
What are the time limits within which applications for the review of contracting authority decisions must be made?
An initial complaint to a head of a procuring entity and any subsequent review by the Authority is to be concluded within 21 days in each instance. The decision of the Authority is subject to review by a court of competent jurisdiction. The duration of an appeal before a court of competent jurisdiction will depend on the complexity of the case and the applicable procedural rules of the civil court.
Suspensive effect
Does an application for the review of a contracting authority decision have an automatic suspensive effect on the contract award procedure?
The Act provides that where review proceedings are instituted, procurement proceedings may be suspended for a maximum of 30 working days. The Amendment Act empowers the Authority to order suspension of a procurement contract that has not entered into force, or order the suspension of a procurement contract that has entered into force, as long as the suspension is necessary to protect the interest of the applicant, unless the Authority decides that urgent public interest considerations require the procurement proceedings or a contract to proceed. However, the procurement process may only be suspended in the following circumstances:
- if the complaint is not frivolous;
- where the bidder demonstrates in the complaint that it will suffer irreparable damage if the process is not suspended;
- where the complaint has a high likelihood of success; and
- where the hearing of the complaint will not cause inappropriate harm to any procurement entity or other bidders.
Approximately what percentage of applications for the lifting of an automatic suspension are successful in a typical year?
Usually, the Authority suspends the procurement process for a maximum period of 30 working days. The Authority in most cases will make the final decision prior to the expiry of the 30 working days, although the Authority may extend the period if necessary.
Challenges to contracting authority decisions
How customary is it for contracting authority decisions to be challenged?
Prior to the enactment of the Act, disadvantaged bidders did not file review applications for fear of being victimised by procuring entities. However, this has changed, and recent developments indicate that there has been an increase in the number of review applications to the Authority.
Violations of procurement law
If a violation of procurement law is established in review proceedings, can this lead to the award of damages?
The Act empowers the Authority to annul the procurement proceeding or cancel the procurement contract if a violation of the Act is established. In addition, the Act provides that the Authority can order the payment of compensation for a reasonable cost incurred by the bidder who submitted the complaint, in connection with the procurement proceedings as result of an illegal decision of, or procedure followed by, the procurement entity. The courts generally have power to award damages to any bidder who suffers damage owing to the breach of duty imposed either under law or contract and, therefore, can award damages to a disadvantaged bidder. The requirement for such a claim would be the general requirements for claims in a court of law.
Is it possible for a concluded contract to be set aside following successful review proceedings?
When a contract is awarded in violation of the procurement law, the Authority is empowered to annul the proceedings and cancel the procurement contract.
Typical costs
What are the typical costs involved in making an application for the review of a contracting authority decision?
The cost and duration of an application for review will depend on the complexity of the case and the applicable procedural rules of the civil court.
