About the Hearing Panel

What are Challenge Proceedings?

Challenge proceedings relate to the process by which a supplier or contractor can seek the review of a decision or action taken by a procuring entity in a procurement proceeding. It is conducted by the Office of Procurement Regulation (“the OPR”) which is an independent regulatory body established by the Public Procurement and Disposal of Public Property 2015, as amended (“the Act”).

To Defend Challenge Proceedings – Day 4 to 6 of the Challenge Process

Reply – Form 9.

Details that must be provided include:

• Email address of the Named Procurement Officer and/or Representative
• Reply to the facts concerning each decision or action being challenged
• Verification or other response to the information provided by the supplier or contractor (the Applicant)
• Reply to each ground of review itemised in the Application for Review
• Any matters relevant to the remedies being sought by the Applicant
• The witnesses to be presented in support of the procuring entity’s Reply at the Hearing of the matter
• The names and contact information of any suppliers or contractors who participated in the procurement proceedings or any public body whose interests may be affected by the Challenge
• The efforts taken to resolve the issue directly with the Applicant

Supporting Documents:

For example:

• Invitation to bid
• Request for proposal/quotation
• Invitation for pre-qualification or pre-selection
• Notice of Intention of Award issued by the procuring entity
• Bid submitted by the Applicant
• Complaint/ Request for Clarification received from the Applicant
• Response sent by procuring entity in relation to Complaint/ Request for Clarification
• Emails, correspondence or other documents relevant to the decision or action being challenged
• Correspondence between the Applicant and the procuring entity in relation to efforts taken to resolve the issue directly with the procuring entity

Notice of Appointment of Representative – Form 2

This is to be submitted if the procuring entity intends to have an Attorney-at-Law, engineer, quantity surveyor, valuator, agent or such other person recognised by the OPR to act on their behalf in the Challenge Proceedings

Request for authorisation to award a procurement contract or enter into a framework agreement

Details that must be provided include:

• How a delay in awarding the procurement contract or entering the framework agreement would be contrary to the public interest; or
• Considerations which justify the awarding of the procurement contract or entering of the framework agreement while the OPR conducts the review

By the time of the Case Management Conference- Day 11 of the Challenge Process

Notice of requirement of an Interpreter – Form 6

Points to note:

• arrangements to retain and utilise the services of an Interpreter is to be borne by the Party submitting this notification to the OPR
• the qualifications of the interpreter must be submitted to the OPR no later than Day 12 of the Challenge process

Notice of need for accommodation (for differently abled persons) – Form 7

Application for leave to call expert witness – Form 11

Details that must be provided include:

• Name, address and qualifications of proposed expert
• Issue on which the expert will provide evidence
• Substance (summary of the relevant points) of the expert’s evidence
• List of documents to which the expert will refer
• Grounds for this application for leave (permission) to call expert witness.

Points to Note:

• Expert evidence is restricted to only what is reasonably required to resolve the challenge proceedings justly and in accordance with the overriding objective of the Hearing Rules and Procedure for Part V Challenge Proceedings
• If leave (permission) is granted to the procuring entity to call an expert witness on their behalf at the Hearing, the expert’s evidence must be filed by Day 13 of the Challenge process and must follow the Guidelines for Technical and Expert Witnesses contained in Schedule I of the Hearing Rules and Procedures for Part V Challenge Proceedings. The expert shall state in their evidence or report that they acknowledge and undertake the duties set out in Schedule I

After the Case Management Conference- Day 12 to 13 of the Challenge process

• Witness statement(s)

Details that must be provided include:

• Account of the facts in support of the claims contained in the Reply
• Supporting documents referred to by the witness
• Statement that the matters set out in the witness statement are within the witness’ own knowledge except where indicated to the contrary

• Skeletal submissions

Details that must be provided include:

• Summary of arguments in support of the responses in the Reply in relation to the allegations that:
  • the procuring entity made a decision or took action that is not in compliance with the Act; and
  • the supplier or contractor has suffered or is likely to suffer loss or injury because of the decision or action of the procuring entity

Throughout the Challenge Proceedings

• Confirmation of Service – Form 1

When the prescribed Forms are submitted to the OPR, the filed version bearing the OPR’S stamp must be served on the other parties to the challenge proceedings. Once served, Form 1 -Confirmation of Service must then be submitted to the OPR.

• Where there was personal service – a copy of the endorsed document must be attached
• Where there was electronic service – a copy of the email showing the electronically delivered document must be attached

After the conclusion of the Challenge Proceeding

• Application for access to the record of the Hearing – Form 16

The procuring entity can submit this application 10 days after the conclusion of the Hearing

Powers of the Hearing Panel

The Hearing Panel has powers relating to:

• Suspension

Within three (3) days of receipt of an Application for Review (Form 8) the Hearing Panel
             can:

• order the suspension of the procurement proceedings at any time before the entry into force of the procurement contract, or
• order the suspension of the performance of a procurement contract or the operation of a framework agreement that has entered into force

• Case management

The Hearing Panel will manage each case in a fair and just manner and give directions to the parties to ensure that the matter is resolved within twenty (20) working days as required by the Act. Some of these directions include:

• simplification or clarification of the issues
• identification and decision on preliminary objections
• deadlines for the submission of witness statements and skeletal submissions

• Dismissal

The Hearing Panel can dismiss an Application for Review:

• that is manifestly without merit,
• that has not been submitted within the stipulated time limits (section 50(2) of the Act), or
• where the Applicant does not show sufficient standing i.e. they do not have a pecuniary or otherwise economic interest in the procurement proceedings

• Ordering certain action upon the conclusion of the Challenge proceeding

After hearing the parties, the Hearing Panel will decide on the matters raised in the Application for Review and can make the following orders:

• Prohibit a procuring entity from acting in a manner or taking a decision or following a procedure that is not in compliance with the Act
• Require a procuring entity to take a decision or to proceed in a manner that is in compliance with the Act
• Confirm a decision of a procuring entity
• Overturn the award of a procurement contract or a framework agreement that entered into force in a manner that is not compliance with the Act, and direct the publication of the notice that the award was overturned
• Direct the termination of the procurement proceedings
• Dismiss the Application for Review
• Require the payment of compensation for:

1. reasonable costs incurred by a supplier or contractor submitting the Application for Review
2. any loss or damages suffered i.e. the costs of the preparation of the submission or the costs relating to the Application for Review, or both

What the Hearing Panel does NOT do

The Hearing Panel does not:

• provide legal advice to aggrieved suppliers or contractors on the content of its Application for Review
• provide legal advice to procuring entity on the content of its Reply
• deal with contract management issues which arise after the award of contract
• disclose information which would:
  • impair the protection of essential security interests of the State
  • be contrary to law
  • impede law enforcement
  • prejudice the legitimate commercial interests of the suppliers or contractors
  • impede fair competition

How can the Hearing Panel’s decisions be reviewed?

A procuring entity or any other person who is entitled to be given an opportunity to make representations in Challenge proceedings may request the Public Procurement Review Board (“PPRB”) to review the Hearing Panel’s:

1. Order of suspension
2. Decision at the end of the Challenge proceeding.

The PPRB is separate from the OPR and its members are appointed by the President after consultation with the Prime Minister and the Leader of Opposition. The request for review must be made within twenty-one (21) working days of the making of the order or decision of the Hearing Panel.

A party to a review may subsequently appeal against the decision of the PPRB to the High Court within twenty-eight (28) days of the PPRB’s decision.

For more information

Visit our website at www.oprtt.org or call us at (868) 627-4OPR (4677) or (868) 226-4OPR (4677)