The Public Procurement and Administrative Review Board is the first pot of call for all procurement challenges/disputes. Section 167 (1) of the Public Procurement and Asset Disposal Act requires an aggrieved candidate or a tenderer to seek administrative review at the Public Procurement Administrative Review Board within FOURTEEN (14) days of notification of the award or date of occurrence of the alleged breach at any stage of the procurement process.
The ability to challenge a procurement decision is dependent on the receipt of the notification of the decision of the procuring entity. Section 67 of the Act[1] requires that a notification must contain reasons for the decision reached by the procuring entity. The Procurement Review Board has held that a notification with reasons is meant to enable a tenderer to, among other things, know the reasons why its bid was not successful and to decide depending on the reasons given, whether to challenge the Procuring entity’s decision or not.[2]
The mandate to entertain any procurement complaint/dispute is vested on the Board by the Act. However, this mandate must be invoked within the set timelines and failure to comply with the set timelines will render the challenge, however grave the allegations, a nullity. Courts have interpreted the timelines generally from a jurisdictional perspective, meaning that, the Review Board will lack the jurisdiction to hear and determine a dispute filed beyond the mandatory 14 days period.
Whether or not the Review Board can extend the timelines for filing a review application under section 167 is similarly restricted and one cannot invoke discretion in inviting the Board to consider an application for extension of time. Therefore, the time of filing a review cannot be considered to be expandable as the very review is pegged on a decision that must have been communicated to all the parties in the procurement process. One wonders however, what happens in the case where a party who participated in a procurement process is not informed of the procurement decision?
Courts have been consistent in affirming the fact that the period for filing a Review Application at the Procurement Review Board is cast in stone. In Republic Vs Principal Secretary Ministry of Health and Another, exparte Apex Communication Limited trading as Apex Porter Novelli, Odunga J upheld the decision of the Public Procurement Administrative Review Board not to entertain a request for review on the ground that the same had been filed outside the period for filing such a review and it did not have jurisdiction to deal with it.
In Republic Vs Public Procurement Administrative Board, Center for Mathematics, Science & Technology in Africa (CEMESTEA) and Lavington Security Ltd, JR Case no. 21 of 2015, it was held that the jurisdiction of the Board is only available where an application for review has been filed within 14 days from the date of the delivery of the results of the tender process or form the date of the occurrence of an alleged breach where the tender process has not been concluded. The Court observed as follows;
“The timelines in the Public Procurement and Asset Disposal Act were set for a purpose. Proceedings touching on procurement matters ought to be heard and determined without undue delay. Once a party fails to move the Board within the time set by the Regulations, the jurisdiction of the Board is extinguished in so far as the particular procurement is concerned.”
In conclusion, it is paramount that a party taking part in a procurement process remains vigilant throughout the process so that they are not locked out of the opportunity to challenge the process.
[1] Section 67 of the Public Procurement and Asset
[2] Apex Security Services vs Centre for Mathematics, Science & Technology in Africa (CEMESTEA) and Lavington Security Limited
