The Office of Procurement Regulation

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Challenge Proceedings

Challenge Proceedings is the process by which a Supplier or Contractor may apply to the Office of Procurement Regulation (“the OPR”) for a review of a decision or action taken by a procuring entity (“the Respondent”) in a procurement proceeding.

The procedure is governed by:
    i. Part V of The Public Procurement and Disposal of Public Property Act No. 1 of 2015 (as amended) (“the Act”);
    ii. The Public Procurement and Disposal of Public Property (Challenge Proceedings) Regulations 2021;
    iii. The Hearing Rules and Procedure for Part V Challenge Proceedings; and
    iv. The Electronic Filing and Hearing Rules for Part V Challenge Proceedings.
The OPR is an independent regulatory body established by the Act, which has the authority to hear and determine Challenge Proceedings.
A supplier or contractor (“Applicant”) who has suffered or is likely to suffer loss or injury because of the decision or action of the procuring entity that is not in compliance with the Act.
A decision or an action taken by a procuring entity in the procurement proceedings that is not in compliance with the Act. Challenges can relate to:
    i. Terms of solicitation;
    ii. Terms of prequalification;
    iii. Terms of preselection;
    iv. Decisions or actions taken by a procuring entity in prequalification proceedings;
    v. Decisions or actions taken by a procuring entity in preselection proceedings; and
    vi. Other decisions or actions taken by a procuring entity in procurement proceedings before the timeframe 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 prior to 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:
    i. If a standstill period was applied, the deadline to file this Challenge is within the standstill period; and
    ii. 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.

The standstill period is a short pause of at least ten (10) to fifteen (15) working days which begins when the Notice of Decision to Award is issued to suppliers or contractors who have participated in the procurement proceedings. During this time a procuring entity cannot accept the successful submission and suppliers or contractors can challenge the decision.

Within three (3) days of receipt of a Form 8 Application for Review, 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.
Hearings may be conducted:
    (a) in person at Level 19, Tower D, International Waterfront Centre, 1A Wrightson Road, Port of Spain or at such other place as the Office directs;
    (b) electronically;
    (c) in writing; or
    (d) any combination of (a) to (c).

The Applicant, Respondent, and their Representatives, will be required to first attend a Case Management Conference (“CMC”) for the Hearing Panel to deal with preliminary issues and issue directions to the Parties. Interested Parties can also attend the CMC.

At the Hearing, each Party and their Representatives must attend along with supporting witnesses and an interpreter if required. Only one person from each side may speak at the Hearing. However, parties can confer with their respective Representatives during the proceedings.

The presiding Member of the Hearing Panel will give opening remarks. The Applicant, followed by the Respondent and Interested Parties, will be given the opportunity to present their respective cases. This includes the opportunity to call witnesses in support who can be asked questions by the other Parties and the Hearing Panel. Each Party will be allowed to present skeletal submissions in relation to the grounds of review and closing submissions.

Details that must be provided in the witness statement(s) include:
    i. An account of the facts in support of the claims contained in the Application for Review;
    ii. Supporting documents referred to by the witness/es; and
    iii. A statement that the matters set out in the witness statement/s are within the witness’ own knowledge except where indicated to the contrary.
Details that must be provided in the skeletal submissions include:
    i. A summary of the arguments in support of the grounds stated in the Application for Review:
    ii. That the procuring entity made a decision or took action that is not in compliance with the Act; and
    iii. That the supplier or contractor has suffered or is likely to suffer loss or injury because of the decision or action of the procuring entity.
The Hearing Panel can appoint an expert to report in writing on specific issues in Challenge Proceedings. Each Party will be provided with a copy of the report and have a reasonable opportunity to question that expert on the contents of same.

DAYS 1-3

An aggrieved supplier or contractor (“The Applicant”) initiates the Challenge process by submitting a completed Application for Review (Form 8), supporting documents and any other relevant Forms to the Office of Procurement Regulation (“the OPR”) via challenge@opr.org.tt within the timeframe set in section 50(2) of the Public Procurement and Disposal of Public Property Act 2015, as amended (“the Act”).  The Applicant must also serve these Forms and supporting documents on the procuring entity whose decision or action is being challenged (“the Respondent”).

Within 3 days the OPR will publish a Notice of the Application for Review in two (2) daily newspapers and its website as well as notify the Respondent.

DAYS 4-6

By Day 3 the OPR will decide whether to order the suspension of the procurement proceedings or the performance of a procurement contract or the operation of a framework agreement in accordance with the Act. The decision on suspension will be communicated to the Applicant and the Respondent between Day 4 to 6.

Between Day 4 to 6 the Respondent must submit to the OPR and serve on the Applicant, its Reply (Form 9), supporting documents, any request for authorisation to award a procurement contract or enter into a framework agreement and any other relevant Forms.

By Day 6 an Interested Party must submit to the OPR and serve on the other Parties, its Application to Participate (Form 10), supporting documents and any other relevant Forms.

DAY 7

The OPR would continue its preparations for advancing the matter by examining the documents received and arranging a Case Management Conference with all the Parties.

DAYS 8-9

The OPR would provide the Notice of the Case Management Conference date, time and place to all the Parties.

During this period any Party can submit to the OPR and serve on the other Parties, an Application for leave to call an expert witness (Form 13) at the Hearing in accordance with the Hearing Rules and Procedure for Part V Challenge Proceedings (“the Hearing Rules”).

DAY 10

The Hearing Panel would continue its preparations for the Case Management Conference.

DAY 11

The Parties (and Representatives) must attend the Case Management Conference (“CMC”) which will be held by Day 11. At the CMC the Hearing Panel can give directions/ make orders with respect to the Challenge Proceedings and hear preliminary matters.

By this date the Parties must inform the OPR if the assistance of an interpreter is required (Form 6). Note that arrangements to retain and utilise the services of an Interpreter are to be borne by the notifying Party.

Parties must also inform the OPR by Day 11 if accommodation is required for differently abled persons to attend the Hearing (Form 7).

DAYS 12-13

By Day 12 the OPR would provide the Notice of the directions/orders made at the CMC as well as provide the date, time and place of the Hearing to all the Parties.

Also by Day 12 the Party requiring the assistance of an interpreter must submit the qualifications of the chosen interpreter to the OPR.

All Parties must submit to the OPR and serve on the other Parties, their respective witness statements, expert evidence (if applicable) and skeletal submissions.

DAY 14

The Hearing Panel would continue its preparations for the Hearing.

DAYS 15-16

All Parties are required to attend the Hearing of the Challenge Proceedings. Non attendance by a Party will not prevent the Hearing Panel from continuing with the Hearing in that Party’s absence where the OPR is satisfied that the notification of the Hearing was received and the Party is absent without good cause.

The Hearing is the latest time at which the Applicant can make an Application for Costs (Form 15) in accordance with the Hearing Rules.

At the Hearing, the Applicant will present its case and call witnesses who can be questioned by the other Parties and the Hearing Panel. The Respondent and Interested Parties (if any) will follow the same process. Each Party will then be given the opportunity to make oral closing submissions to the Hearing Panel.

DAYS 17-19

The Hearing Panel would deliberate on the documents, evidence and submissions presented in relation to the matter in order to make its determination.

DAY 20

The OPR will inform the Parties of its Decision. Any order for suspension in force will be lifted at this time.

Note that written reasons for the Decision will be provided no later than 30 days after the Decision.

DAY 30

Parties can apply for the Record of the Hearing (Form 16).

The Hearing Panel will review all the evidence and submissions submitted by the Parties and issue a decision within twenty (20) working days after receipt of the Form 8 Application for Review. Written reasons would be issued to the Parties no later than thirty (30) days thereafter.
The Hearing Panel can require the payment of compensation for costs incurred by the supplier/contractor under the following categories:
    • reasonable costs incurred by a supplier or contractor submitting the Application for Review, and/or
    • any loss or damages suffered which is limited to the costs of the preparation of the submission or the costs relating to the Application for Review.
Visit our website at www.oprtt.org or call us at (868) 627-4OPR (4677) or (868) 266-4OPR (4677)
 Application to Participate – Form 10
Details that must be provided include:
    i. The grounds or basis for the OPR to allow the interested party to participate in the ongoing Challenge Proceedings;
    ii. The effect of the reliefs sought by the Applicant on the interested party; and
    iii. The witnesses to be presented in support of the interested party at the Hearing of the matter.
Supporting documents.
For example:
    i. Extract of Minutes certified by relevant personnel under resolution and seal of the Board (applicable where the interested party is a Company);
    ii. Power of Attorney (applicable where an agent is appointed to act as a Representative on behalf of the interested party); and
    iii. Emails, correspondence or other documents supporting the Application to Participate.
 Form 1- Confirmation of Service
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 as follows:
    i. Where there was personal service- a copy of the endorsed document must be attached; and
    ii. Where there was electronic service- a copy of the email showing the electronically delivered document must be attached.
 Form 2- Notice of Appointment of Representative
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.
 Notice of requirement of an Interpreter – Form 6
Points to note:
    • Arrangements to retain and utilise the services of an Interpreter are to be borne by the Party submitting this notification to the OPR; and
    • The qualifications of the interpreter must be submitted to the OPR no later than Day twelve (12) of the Challenge process.
 Form 7- Notice of need for accommodation (for differently abled persons)
This must be completed by a Party who requires physical or other accommodation for himself/ herself or for his/ her Representative or witness in the Challenge Proceedings due to a disability.
 Form 11- Application for leave to call expert witness
Details that must be provided include:
    xi. Name, address and qualifications of proposed expert;
    xii. Issue/s on which the expert will provide evidence;
    xiii. Substance (summary of the relevant points) of the expert’s evidence;
    xiv. List of documents to which the expert will refer; and
    xv. 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 objectives of the Hearing Rules and Procedures for Part V Challenge Proceedings; and
    • If leave (permission) is granted to the supplier or contractor 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.
 Form 16- Application for access to the record of the Hearing
The supplier or contractor can submit this application ten (10) days after the conclusion of the Hearing.
 What are Challenge Proceedings?
Challenge Proceedings is the process by which a Supplier or Contractor may apply to the Office of Procurement Regulation (“the OPR”) for a review of a decision or action taken by a procuring entity (“the Respondent”) in a procurement proceeding.

The procedure is governed by:
    i. Part V of The Public Procurement and Disposal of Public Property Act No. 1 of 2015 (as amended) (“the Act”);
    ii. The Public Procurement and Disposal of Public Property (Challenge Proceedings) Regulations 2021;
    iii. The Hearing Rules and Procedure for Part V Challenge Proceedings; and
    iv. The Electronic Filing and Hearing Rules for Part V Challenge Proceedings.
The OPR is an independent regulatory body established by the Act, which has the authority to hear and determine Challenge Proceedings.
 Who can submit a Challenge?
A supplier or contractor (“Applicant”) who has suffered or is likely to suffer loss or injury because of the decision or action of the procuring entity that is not in compliance with the Act.
 What can be Challenged?
A decision or an action taken by a procuring entity in the procurement proceedings that is not in compliance with the Act. Challenges can relate to:
    i. Terms of solicitation;
    ii. Terms of prequalification;
    iii. Terms of preselection;
    iv. Decisions or actions taken by a procuring entity in prequalification proceedings;
    v. Decisions or actions taken by a procuring entity in preselection proceedings; and
    vi. Other decisions or actions taken by a procuring entity in procurement proceedings before the timeframe to file a Challenge.
 Are there time limits to submit 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 prior to 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:
    i. If a standstill period was applied, the deadline to file this Challenge is within the standstill period; and
    ii. 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.
 What is a Standstill Period?
The standstill period is a short pause of at least ten (10) to fifteen (15) working days which begins when the Notice of Decision to Award is issued to suppliers or contractors who have participated in the procurement proceedings. During this time a procuring entity cannot accept the successful submission and suppliers or contractors can challenge the decision.
 What happens to the procurement proceedings when a Challenge is submitted?
Within three (3) days of receipt of a Form 8 Application for Review, 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.
 Where are Challenge hearings held?
Hearings may be conducted:
    (a) in person at Level 19, Tower D, International Waterfront Centre, 1A Wrightson Road, Port of Spain or at such other place as the Office directs;
    (b) electronically;
    (c) in writing; or
    (d) any combination of (a) to (c).
 How will Challenge Proceedings be conducted?
The Applicant, Respondent, and their Representatives, will be required to first attend a Case Management Conference (“CMC”) for the Hearing Panel to deal with preliminary issues and issue directions to the Parties. Interested Parties can also attend the CMC. At the Hearing, each Party and their Representatives must attend along with supporting witnesses and an interpreter if required. Only one person from each side may speak at the Hearing. However, parties can confer with their respective Representatives during the proceedings.
 What will happen at the Hearing?
The presiding Member of the Hearing Panel will give opening remarks. The Applicant, followed by the Respondent and Interested Parties, will be given the opportunity to present their respective cases. This includes the opportunity to call witnesses in support who can be asked questions by the other Parties and the Hearing Panel. Each Party will be allowed to present skeletal submissions in relation to the grounds of review and closing submissions.

Details that must be provided in the witness statement(s) include:
    i. An account of the facts in support of the claims contained in the Application for Review;
    ii. Supporting documents referred to by the witness/es; and
    iii. A statement that the matters set out in the witness statement/s are within the witness’ own knowledge except where indicated to the contrary.
Details that must be provided in the skeletal submissions include:
    i. A summary of the arguments in support of the grounds stated in the Application for Review:
    ii. That the procuring entity made a decision or took action that is not in compliance with the Act; and
    iii. That the supplier or contractor has suffered or is likely to suffer loss or injury because of the decision or action of the procuring entity.
 Can the Hearing Panel call experts?
The Hearing Panel can appoint an expert to report in writing on specific issues in Challenge Proceedings. Each Party will be provided with a copy of the report and have a reasonable opportunity to question that expert on the contents of same.
 What happens after the Hearing?
The Hearing Panel will review all the evidence and submissions submitted by the Parties and issue a decision within twenty (20) working days after receipt of the Form 8 Application for Review. Written reasons would be issued to the Parties no later than thirty (30) days thereafter.
 What about compensation?
The Hearing Panel can require the payment of compensation for costs incurred by the supplier/contractor under the following categories:
    • reasonable costs incurred by a supplier or contractor submitting the Application for Review, and/or
    • any loss or damages suffered which is limited to the costs of the preparation of the submission or the costs relating to the Application for Review.
  For more information
Visit our website at www.oprtt.org or call us at (868) 627-4OPR (4677) or (868) 266-4OPR (4677)