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 pre-qualification;
iii. Terms of pre-selection;
iv. Decisions or actions taken by a procuring entity in pre-qualification proceedings;
v. Decisions or actions taken by a procuring entity in pre-selection 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.

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 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 submissions in relation to the grounds of review and closing submissions.

At least 2 days prior to the Hearing witness statements and skeletal submissions must be submitted to the office. 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/Reply;
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.

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
The Applicant initiates the Challenge process by submitting a completed Application for Review (Form 8), supporting documents and any other relevant Forms to OPR via challenge@opr.org.tt within the timeframe set in section 50(2) of 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 three (3) days of receiving an Application for Review, the OPR will publish a Notice of the Application in two (2) daily newspapers and on its website as well as notify the Respondent.

DAYS 4-6
By Day three (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 Days four (4) to six (6).

Between Days four (4) to six (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 six (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 eleven (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 eleven (11), if accommodation is required for differently abled persons to attend the Hearing, by submitting Form 7.

DAYS 12-13
By Day twelve (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 twelve (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 thirty (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.