ADMINISTRATIVE REVIEW

PPDA Act and Administrative review  The Public Procurement and Disposal of Public Assets Act, 2003, sections 89 and 90, provide for Administrative Review.  Section 8 (e) mandates the Authority to act upon complaints by PDEs. providers and any other entity or person, in respect of any party to a procurement and disposal activity, and take the necessary action.

Procedure  A Bidder, or any other interested person, may seek administrative review of a procurement or disposal process due to:  Any omission or breach, by a PDE, of the PPDA Act, the Regulations, or Guidelines, made under the Act  or of the provisions of bidding documents, including best practices.

 Specifically, Sections 8 (c) mandates the PPDA to commission or undertake; 1. investigations, 2. institute procurement or disposal contract and performance audits or 3. investigate complaints by providers.

Stakeholders These include among others; 1. Accounting Officer within the PDE 2. Contracts Committee 3. Evaluation Committee 4. PDU 5. PPDA 6. Suppliers

Major Sources of Administrative Review Complaints  Administrative review by the bidder;  Suspension complaint from Procuring and Disposing Entity; and  Other complaints( from aggrieved bidders, public etc)

Legal Administrative Review Procedures

Step 1: A dissatisfied Bidder, or member of the public, gets his/her complaint resolved  A bidder, upon payment of an administrative review fee to the PDE (a % of the bid value as stipulated in Guideline No. 6 of 2003, on administrative review, issued by PPDA), should, in writing, be addressed to the Accounting Officer of the PDE, within 15 working days from the date the he/she first became aware of the circumstances leading to the complaint.

PERIOD FOR RAISING COMPLAINT  There is a period allowed for raising complaints.  when the Notice of intention to award a contract has been issued to all the bidders, who participated in the bidding process (S.76 (2) (a) and Reg.224).  This is before a contract has been signed

Write Complaint Write Complaint  All complaints to the PDE must be in writing.  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, where possible. quoting sections of the law contravened, where possible. It must be signed by the complainant. It must be signed by the complainant.

Addressed as follows  The Accounting Officer Name of the Entity…. Postal Address…..  The complainant should be able to indicate the grounds for the complaint, the anticipated remedy.  The letter should be signed by an authorized person.

 A bidder submits a request for administrative review only after payment of an administrative review fee to the PDE.  This implies for someone to lodge a complaint he/she must have enough evidence to support his/her case.  otherwise the fee paid for the review, will have been wasted if the case is frivolous and holds no water.

Step 2: What happens when the Accounting Officer receives the complaint?  On receiving a complaint, the Accounting Officer will investigate it and make a decision within 15 working days, indicating the corrective measures to be taken, if any, including the suspension of the proceedings, where he/she deems necessary, and giving reasons for his/her decision [S90 (2) and (3)].  If the complaint is upheld, the bidder’s administrative fee is refunded.

In case a Bidder is dissatisfied with the decision of the AO or the AO does not make a decision in the stipulated time  If a bidder is dissatisfied with the decision of the AO, the bidder may appeal to the Authority.  This should be done within 10 (ten) working days from the date of communication of the decision of the AO, or expiry of the stipulated time.  The bidder is not required to pay an additional administrative review fee at this level.  The appeal can either be mailed or hand delivered.  If a fax is sent, an original must also be delivered, as action can only be done on the original.

 The onus is on the complainant to ensure actual delivery of the letter. It should be addressed to: The Executive Director Public Procurement & Disposal of Public Assets Authority P.0 B0x 3925, Kampala Tel: , /26, Fax Pilkington Road, 14 th Floor, Workers House. The Executive Director Public Procurement & Disposal of Public Assets Authority P.0 B0x 3925, Kampala Tel: , /26, Fax Pilkington Road, 14 th Floor, Workers House.

STEP 3 : Authority receives an appeal from a bidder  The Authority will promptly give notice of the appeal, to the AO of the respective PDE, suspending any further action, on the procurement or disposal process, by the PDE until the Authority has settled the matter.  The Authority will also notify all the interested bidders of the complaint.  The complaint is then immediately analyzed and investigated.  During the investigation, to uphold the principle of natural justice, the Authority normally requests both parties to attend any meeting where such parties may need to clarify on some issues.  The Authority must issue its decision within 21 (twenty one) working days [S91]

STEP 4: Authority get back to the stakeholder who lodged the complaint  When investigations are concluded, the provider will be reached by post or fax, in less than 48 hours.

Possible decision that can be made, by the Authority, on a received complaint  The Authority may dismiss the complaint, if the complaint is deemed not to hold any water, or PPDA may investigate the complaint fully, if it is felt that there is overwhelming evidence.  If the complaint is not dismissed, the Authority can prohibit a PDE from taking any further action or annul, in whole or part, any unlawful act or decision already made by the PDE.

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

What happens if the complainant is not satisfied with the decision reached by PPDA?  The most appropriate way to handle the complaint, after this far, is for the provider to lodge his complaint to the Inspector General of Government (IGG) for further investigation.  Actually, the IGG will not accept any complaint that has not gone through the above process unless it is one of outright corruption.  All the latter cases go straight to the IGG. PPDA has an arrangement with the IGG on this procedure.  Failure to be satisfied with the IGG’s decision, the bidder may go either for arbitration or to the courts of law.

Options in case aggrieved party is not satisfied with PPDA decision  Complainant can sue the PDE in courts of law for such a breach of procedure.  However, the Authority advises the public that this method of conflict resolution should be used only after dialogue and peaceful negotiations have been exhausted.  Moreover, parties are further advised to go for conciliation and/or arbitration before one can opt for the protracted and costly litigation.  Otherwise, it is expected that if a bidder follows the established administrative review procedure, his/her case will be resolved very fa st, cheaply and the matter will remain private.

In case a member of the public or any other person (whistle blower) is concerned about anything going wrong, but was never involved in the Procurement or Disposal Process, and wants to report it to PPDA?  A person who has anything to report on, about any omissions or commissions of the public procurement or disposal process by a PDE, should contact the Executive Director, PPDA at any time, during working hours.  He/she must be willing to identify him/herself and offer more information and evidence of the wrongdoing in the respective PDE.  His / her identity however, remains confidential to the public.

CASE STUDY