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:

1. Part V of The Public Procurement and Disposal of Public Property Act;
2. The Public Procurement and Disposal of Public Property (Challenge Proceedings) Regulations 2022;
3. The Hearing Rules and Procedure for Part V Challenge Proceedings; and
4. The Electronic Filing and Hearing Rules for Part V Challenge Proceedings.

The Hearing Panel is the tribunal set up by the OPR to hear and determine Challenge Proceedings. The Hearing Panel will comprise members of the OPR’s Board and/ or Management.

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.

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:

• Terms of solicitation
• Terms of prequalification
• Terms of preselection
• Decisions or actions taken by a procuring entity in prequalification proceedings
• Decisions or actions taken by a procuring entity in preselection proceedings
• Other decisions or actions taken by a procuring entity in procurement proceedings before the timeframe to file a Challenge (see below)

Where the Challenge relates to the terms of solicitation, prequalification, preselection or decisions or actions taken by a procuring entity in prequalification or preselection 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 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.

All documents relative to an ongoing Challenge Proceeding must be submitted to the OPR via email to challenge@opr.org.tt

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.opr.org.tt

Form 8 is the Application for Review which must be completed, signed and submitted. Documents and evidence in support must be listed in Form 8 and attached to the email initiating the Challenge proceedings.

As the proceedings progress, the Applicant must submit witness statements, skeletal submissions and any other documents required by the Hearing Panel.

Form 9 is the Reply which must be completed, signed and dated by the Accounting Officer or equivalent in the procuring entity. This Reply must be submitted no later than 3 days after receipt of OPR’s notification of the Application for Review. Documents and evidence in support must be listed in Form 9 and attached. The Case ID number must be included in the subject line of the email to the OPR.

As the proceedings progress, the Respondent must submit witness statements, skeletal submissions and any other documents required by the Hearing Panel

Within 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 Representative 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 verbally present closing submissions.

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.

The Hearing Panel will review all the evidence and submissions submitted by the Parties and issue a decision within 20 working days after receipt of the Form 8 Application for Review. Written reasons would be issued to the Parties no later than 30 days thereafter.

The Hearing Panel can require the payment of compensation for costs incurred by the supplier/contractor under the following categories:

1. reasonable costs incurred by a supplier or contractor submitting the Application for Review, and/or
2. 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

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.

A party to a review may subsequently appeal against the decision of the PPRB to the High Court.

Visit our website at www.oprtt.org or call us at (868) 627-4OPR (4677) or (868) 266-4OPR (4677)