THE UNITED REPUBLIC OF TANZANIA. GOVERNMENT NOTICE NO 205 published on 22/7/2005. THE PUBLIC PROCUREMENT ACT, 2004 (ACT No.

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1 THE UNITED REPUBLIC OF TANZANIA GOVERNMENT NOTICE NO 205 published on 22/7/2005. THE PUBLIC PROCUREMENT ACT, 2004 (ACT No. 21 OF 2004) RULES THE PUBLIC PROCUREMENT APPEALS RULES, 2005 ARRANGEMENT OF RULES

2 Rule Title PART 1 PRELIMINARY PROVISIONS 1. Citation 2. Application 3. Interpretation PART II PROCEDURE FOR APPEALS 4. Who may appeal 5. Matters from which an appeal may lie 6. Notice of intention to appeal 7. Lodging of appeal 8. Contents of the appeal 9. Receipt of appeal and notification of parties 10. Payment of fees 11. Amendment of statement of appeal PART III ATTENDANCE OF PARTIES 12. Withdrawal of appeal 13. Rejection of appeal 14. Notice to parties to attend 15. Where only appellant appears 16. Setting aside of decision passed ex parte 17. Where only respondent appears 18. Where neither party appears 19. Witnesses and production of evidence 2

3 20. Quorum 21. Procedure 22. Record of proceedings 23. Decision PART IV PROCEDURE AT THE HEARING SCHEDULES 3

4 THE PUBLIC PROCUREMENT ACT, 2004 (ACT No. 21 OF 2004) RULES (Made under Section 88) THE PUBLIC PROCUREMENT APPEALS RULES, 2005 PART I PRELIMINARY PROVISIONS Citation 1. These Rules may be cited as the Public Procurement Appeals Rules, Application 2.These Rules shall apply in respect of appeals or review of decisions, acts or omission by the Accounting Officer or Chief Executive Officer, Tender Boards, Regional Commissioner, the Minister responsible for Local Government Authorities or the Public Procurement Regulatory Authority in relation to the procurement of goods, works, services and disposal of public assets by tender. Interpretation 3. In these Rules, unless the context requires otherwise - Act means the Public Procurement Act, 2004; appeal or review for the purpose of determining a complaint or dispute arising from acts or omissions by a procuring entity, the Authority or the Public Procurement Appeals Authority, means the process whereby the appellant seeks redress pursuant to section 81, 82 or 85 of the Public Procurement Act; appellant means any person who lodges an appeal or applies for review before the Public Procurement Appeals Authority or to 4

5 the Court; authority means the Public Procurement Regulatory Authority; complaint or dispute as used in these Rules, means any decision, matter, act or omission arising out of procurement or disposal proceedings with respect to which an appeal is preferred; decision means the verdict reached in appeals or applications; member or members means a person or persons being the member or members of the Public Procurement Appeals Authority who has or have been nominated to form a panel for purposes of determining a complaint or dispute; respondent means any person against whom appeal has been lodged or an application for review has been filed; Secretary means the Secretary of the Public Procurement Appeals Authority appointed pursuant to paragraph 2 of the Third Schedule to the Act; PART II PROCEDURE FOR APPEAL Who may appeal Matters from which appeal may lie 4. Any person being a supplier, contractor, consultant, buyer, service provider, disposer of public assets by tender or procuring entity and who is dissatisfied with the decision, matter, act or omission of the Minister responsible for Local Government Authorities or the Public Procurement Regulatory Authority may lodge an appeal to the Public Procurement Appeals Authority 5. Except for a decision, matter, act or omission arising from the provision of subsection (2) of section 72 and, subject to sections 79, 81 and 85 of the Act, an appeal shall lie from the following matters: (a) acceptance or rejection of a bid; (b) (c) award or proposed award of contract; inclusion of unacceptable provisions in the tender documents; 5

6 (d) (e) unacceptable tender process; or decision, act or omission of the procuring entity or reviewing authority. Notice of intention to appeal Lodging of appeal Contents of the appeal 6.-(1) A person who is dissatisfied with the matter or decision giving rise to a complaint or dispute may give notice of intention to appeal within seven days from the date when he became aware of the matter or decision. (2) Notice of intention to appeal, shall be filed with the Secretary of the Public Procurement Appeals Authority. (3) Notice of intention to appeal shall be made in three copies on Form PPAA No.1 prescribed in the First Schedule to these Rules and shall be signed by the person who signed the tender documents or his legally authorized representative. (4) Where more than three persons participated in the procurement or disposal proceedings, copies of the notice of intention to appeal shall be in such number as may be sufficient to distribute to all such persons. 7. Appeal to the Public Procurement Appeals Authority shall be lodged by filing a Statement of Appeal within fourteen days from the date when the decision, matter, act or omission giving rise to an appeal was made. 8.-(1) Appeal shall be filed on Form PPAA No.2 specified in the First Schedule to these Rules, and shall contain the following: (a) name and address of the parties; (a) statement of facts giving rise to a complaint or a dispute; (b) relief or remedy being sought. (2) In addition to particulars referred to in sub rule (1), an appeal shall be accompanied by the following supporting documents: (a) notice of intention to appeal; 6

7 (b) a copy of the decision giving rise to the appeal; and (c) any other material documents which the appellant may consider necessary for the proper determination of the appeal. (3) Without prejudice to the preceding provisions of this Rule, the Public Procurement Appeals Authority may order a party to the proceedings to supply any document that may be necessary for the settlement of a complaint or dispute that has been preferred before it. Receipt of appeal and notification of parties Payment of fees Amendment of statement of appeal Withdrawal of appeal 9.-(1) On receipt of the appeal, the Secretary shall endorse the date and send a copy to the respondent and all other parties who participated in the procurement or disposal proceedings. (2) Upon receipt of a statement of appeal, the respondent shall within five days from the date of receipt, file a statement of reply to the Public Procurement Appeals Authority. (3) Any other party to the procurement or disposal proceedings may, within five days from the date of receiving a copy of statement of appeal, file a statement giving details of the subject matter of the appeal indicating intention to participate as a party to the proceedings. 10.-(1) When filing appeal, the appellant shall be required to pay fees as stipulated in the Second Schedule to these Rules. (2) The Public Procurement Appeals Authority shall not entertain any appeal unless the appropriate fees have been paid. (3) The Minister may, by notice published in the Gazette, amend the Second Schedule. 11. The Public Procurement Appeals Authority may, on its own motion or on application by a party to the proceedings, order that the statement of appeal be amended in such manner as may be suitable and necessary for the determination of the complaint or dispute. 12.-(1) The Appellant may withdraw the appeal at any time 7

8 before the decision is made. (2) Withdrawal of the appeal shall be made by notice in writing submitted to the Secretary. (3) If the withdrawal is made at the time when parties are in attendance, it shall be sufficient for the appellant to make an oral statement to that effect and the Chairman of the panel shall record the statement accordingly. (4) Where the appeal has been withdrawn, the Secretary shall immediately send to the respondent and to other parties a copy of the notice of withdrawal or a statement as recorded by the Chairman and may attach any document relating to the subject matter of the appeal. Rejection of appeal 13.-(1) The Public Procurement Appeals Authority may at its absolute discretion reject an appeal where it is satisfied that any conditions regarding institution of appeal have not been complied with. (2) Where an appeal is rejected, the Public Procurement Appeals Authority shall give reasons for the rejection of such appeal. Notice to parties to attend hearing 14.-(1) After submission of all the required statements, the Secretary shall issue a seven days notice of hearing to the parties. (2) A notice of hearing shall be signed by the Secretary and served upon the parties using a Form PPAA No. 3 prescribed in the First Schedule. (a) a person served with a notice of hearing shall endorse each copy of the notice and return a copy to the (b) Secretary; and endorsement of notice by the person served shall be sufficient proof of service. (3) In every proceeding before Public Procurement Appeals Authority, the parties may appear in person or by legally authorized representatives. 8

9 (4) Notwithstanding the provisions of sub rule (1) and (2), the Public Procurement Appeals Authority may, with the consent of the parties, proceed to determine the appeal without the attendance of the parties. Where only appellant appears Setting aside decision passed ex parte. 15. Where the appellant appears and the respondent does not appear on the date fixed for hearing, if it is proved that notice was duly served, the appellant may apply to proceed ex parte. 16.-(1) Where a decision was passed ex parte against a respondent, the respondent may apply to the Public Procurement Appeals Authority for an order to set it aside if it is satisfied that sufficient cause exists that prevented the respondent to appear for hearing and shall fix another date for hearing. (2) Application for setting aside ex parte decision shall be made within five days from the date on which the decision was made. Where only respondent appears Where neither party appears Witnesses and production of evidence 17. Where the respondent appears and the appellant does not appear when the appeal is called for hearing the Public Procurement Appeals Authority shall make an order dismissing the appeal. 18. Where neither party appears when the appeal is called for hearing, the Public Procurement Appeals Authority may make an order dismissing the appeal or in lieu thereof, make an order adjourning the hearing to another date and inform the parties accordingly. 19.-(1) The parties may call and the Public Procurement Appeals Authority may summon any person to attend at the hearing and give evidence including the production of any document if it believes that the evidence is necessary for judicious disposition of a complaint or dispute preferred before it. (2) The summons shall be issued and signed by the Secretary using Form PPAA No. 4 prescribed in the First Schedule. 9

10 (3) A person summoned as a witness by Public Procurement Appeals Authority shall be entitled to allowances to defray traveling expenses at the rate determined by the Public Procurement Appeals Authority. PART IV PROCEDURE AT THE HEARING Quorum Procedure Record of proceedings Decision 20.-(1) Three members of the Public Procurement Appeals Authority shall form a quorum at the hearing of the appeal. (2) At the hearing, members forming a panel shall nominate one of their number to be the Chairman. (3) The decision of the Public Procurement Appeals Authority shall be made on the basis of majority of votes of the members. (4) At any hearing of the Public Procurement Appeals Authority, a decision of the majority of the members present shall be a recorded as the decision of the Public Procurement Appeals Authority, save that a member who dissents from that decision shall be entitled to a dissenting decision and the reasons thereof recorded in the minutes of the proceedings of the appeal. 21.-(1) Subject to provisions of the Public Procurement Act and these Rules, the Public Procurement Appeals Authority shall make the procedures for the conduct of proceedings at the hearing. (2) The proceedings before the Public Procurement Appeals Authority shall be conducted with as little formality and technicality as possible and, in relation therewith, the Public Procurement Appeals Authority shall not be bound by strict rules of evidence. 22. Proceedings at the hearing by Public Procurement Appeals Authority shall be recorded in writing by the members or by any other authorized person. 23.-(1) The Public Procurement Appeals Authority shall fix 10

11 the date of delivery of the decision not being later than five days following the date of completing the hearing. (2) The decision of the Public Procurement Appeals Authority shall be made in writing and signed by all members forming the panel. (3) The decision shall state the reasons for the decision and the remedies granted. (4) Upon delivery of the decision the Secretary shall, within fourteen days from the date of delivery of the decision communicate to all parties the decision of the Public Procurement Appeals Authority. FIRST SCHEDULE PPAA FORM NO. 1 THE UNITED REPUBLIC OF TANZANIA IN THE PUBLIC PROCUREMENT APPEALS AUTHORITY AT... In the matter of intended appeal APPEAL NO OF BETWEEN APPELLANT AND....RESPONDENT NOTICE OF INTENTION TO APPEAL Rule 6 (3) 11

12 TAKE NOTICE that being aggrieved by the decision of.. Issued on day of.. year.. regarding intends to appeal against.. The address of service of the appellant is..... Dated this day of... year.. Signed.. Appellant/Legally Authorized representative Lodged.. on the... day of Month year. SECRETARY 12

13 THE UNITED REPUBLIC OF TANZANIA PPAA FORM NO. 2 IN THE PUBLIC PROCUREMENT APPEALS AUTHORITY AT.. In the matter of appeal APPEAL NO OF.. YEAR BETWEEN..APPELLANT AND RESPONDENT STATEMENT OF APPEAL (Under Rule 8(1) 1. PARTICULARS OF APPELLANT a) Name: b) Nature of business.. c) Postal address d) City, Municipality, Town. Telephone No. Fax No. address e) Tender No. 13

14 2. STATEMENT OF FACTS SUPPORTING THE APPEAL: (If space provided is not adequate, attach as many additional pages as needed for the statements) 3. LIST OF DOCUMENTS OR THINGS TO BE PRODUCED BEFORE THE PPAA (Give brief description of each document or things attached to the Statement of Appeal ). 4. NAME OF WITNESSES, IF ANY, AND THEIR ADDRESSES Dated this day of.. year.. Signature of Appellant/Legally Authorized representative. (For official use only) 5. To be completed by Secretary PPAA. Date of lodging the appeal.. 14

15 Signature... Official stamp 6. Service of Copy of Statement of Appeal Name: Address:.. Date: Signature:.. Official stamp 15

16 PAA FORM NO. 3 THE UNITED REPUBLIC OF TANZANIA IN THE PUBLIC PROCUREMENT APPEALS AUTHORITY AT... In the matter of appeal APPEAL NO. OF..... BETWEEN APPELLANT AND.... RESPONDENT NOTICE OF PARTIES TO APPEAR (Under Rule 14(2) TO: TAKE NOTICE that the above appeal will be heard by the Public Procurement Appeals Authority (PPAA) on the..day of year at. at.. (Indicate place). You are accordingly required to appear before the PPAA and bring witness with you if any. 16

17 If no appearance is made by you or by any person legally authorized by you to act on your behalf, the appeal may be heard and decided in your absence. Signed and Issued by the Public Procurement Appeals Authority this day of Signature Date and Official Stamp SECRETARY ACKNOWLEDGEMENT OF RECEIPT OF NOTICE. Name. Address. Signature.. Date... If you do not wish to appear or to send a representative to appear before you, you may give consent to the PPAA to proceed to determine the appeal on the basis of the documents and information you submitted. I give to consent to the PPAA to determine the appeal without my attendance. Signature Date 17

18 THE UNITED REPUBLIC OF TANZANIA PPAA FORM NO. 4 IN THE PUBLIC PROCUREMENT APPEALS AUTHORITY AT. APPEAL NO. OF. BETWEEN APPELLANT AND.. RESPONDENT NOTICE OF WITNESS TO APPEAR (Under Rule 19(2) To: Whereas your attendance is required as a witness on behalf of during the hearing of the above appeal. You are by this notice required to appear before the PPAA on the.day of..year.at.o clock and bring with you or send the following books, documents or things to the PPAA. 18

19 Signed and Issued by the Public Procurement Appeals Authority this...day of Secretary ACKNOWLEDGEMENT OF SERVICE OF NOTICE Full Name... Address... Signature Date. 19

20 SECOND SCHEDULE FEES PAYABLE Subject matter Amount in Shs. 1. On submitting notice of intention to appeal 20, On submitting statement of appeal 100, On submitting application to set aside ex parte decision 10, Dar es Salaam,. May, 2005 BASIL P. MRAMBA, Minister for Finance 20