What are Challenge Proceedings?
It is a 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 Act 2015, as amended (“the Act”).
The procedure is governed by:
- Part V of the Act;
- The Public Procurement and Disposal of Public Property (Challenge Proceedings) Regulations 2022; and
- The Hearing Rules and Procedure for Part V Challenge Proceedings.
The decision of the OPR will be issued within twenty (20) working days after receipt of the application for review submitted by the aggrieved supplier or contractor. Written reasons would be issued no later than thirty (30) days thereafter.
What can be challenged?
A decision or an action taken by a procuring entity during a procurement proceeding that is not in compliance with the Act
These can relate to:
- Terms of solicitation
- Terms of pre-qualification
- Terms of pre-selection
- Decisions or actions taken by a procuring entity in pre-qualification proceedings
- Decisions or actions taken by a procuring entity in pre-selection proceedings
- Other decisions or actions taken by a procuring entity in procurement proceedings before the timeframe to file a Challenge (see below)
Who can file a Challenge?
A supplier or contractor who has suffered or is likely to suffer loss or injury because of the decision or action of the procuring entity.
When to file a Challenge
Where the Challenge relates to the terms of solicitation, pre-qualification, pre-selection or decisions or actions taken by a procuring entity in pre-qualification or pre-selection proceedings, the deadline to file this Challenge is before the deadline for presenting submissions.
Where the Challenge relates to other decisions or actions taken by a procuring entity in procurement proceedings the deadline to file this challenge depends on whether or not a standstill period was applied by the procuring entity.
- If a standstill period was applied, the deadline to file this Challenge is within the standstill period
- If a standstill period was not applied, the deadline to file this Challenge is within seven (7) working days after the publication of the notice of the decision or action that was taken by the procuring entity.
How to file a Challenge
The Hearing Rules and Procedure for Part V Challenge Proceedings sets out the prescribed Forms to be used in Challenge Proceedings. These Rules and Forms can be downloaded from the OPR’s website www.oprtt.org
Form 8 is the Application for Review which must be completed, signed and submitted via email to the OPR at email@example.com . The supplier or contractor must provide details of the contention including:
- Each decision or action being challenged
- The facts surrounding each decision or action
- The grounds or basis for the OPR to review the decision or action taken by the procuring entity i.e., the non-compliance or breach being alleged
- The remedies being sought from the OPR
- The witnesses to be presented in support of the supplier or contractor’s application for review at the Hearing of the matter
- The efforts taken to resolve the issue directly with the procuring entity
Documents and evidence in support of the Application for Review must be listed in Form 8 and attached to the e-mail initiating the Challenge proceedings. Failure to attach any relevant documents can result in the inability of the supplier or contractor to rely on same at the Hearing.
Other relevant forms which may be submitted at this stage are:
- Form 2 – Notice of Appointment (of Representative). This is to be submitted if the supplier or contractor intends to have an Attorney-at-Law, engineer, quantity surveyor, valuator, agent or such other person recognized by the OPR to represent them in the Challenge Proceedings
- Form 1 – Confirmation of Service. When Form 8 and supporting documents are submitted to the OPR, these must be served on the procuring entity (the Respondent). Once served, Form 1 – Confirmation of Service must be submitted to the OPR.
Once the supplier or contractor e-mails the Application for Review to the OPR, an e-mail with the Case ID number will be issued. This Case ID number must be included in the subject line of future e-mails in relation to that Challenge proceeding.
All communications to the Hearing Panel relating to any Challenge Proceedings must be through the Administrative Review Secretariat of the OPR.
For more information
Visit our website at www.oprtt.org or call us at (868) 627-4OPR (4677) or (868) 226-4OPR (4677)