Respondent Procuring Entites
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 2021; 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 after the decision.
How can a procuring entity mitigate against the risk of a Challenge being brought against it?
- Comply with the requirements of the Act, Regulations, approved General or Special Guidelines and Handbooks as applicable;
- Conduct procurement proceedings in accordance with the objects of the Act that is, in accordance with the principles of accountability, integrity, transparency, value for money, fairness and equity; and
- Engage in dialogue with suppliers or contractors who may submit queries or requests for clarification during the procurement proceedings. Clear and comprehensive responses at this stage can prevent the escalation of the matter into a formal Challenge.
How will a procuring entity be informed of a Challenge?
Once the OPR receives an Application for Review from an aggrieved supplier or contractor (“Applicant”), the OPR will notify the procuring entity (“Respondent”) through its Named Procurement Officer (“NPO”) within three (3) days of receipt of the Application. It is therefore important that procuring entities provide the OPR with the name, e-mail and contact details of its current NPO and immediately notify the OPR of any changes. This notification will contain the Case ID number assigned to that Challenge proceeding. This Case ID number must be included in the subject line of future e-mails in relation to that Challenge proceeding.
Notice of the Application for Review will also be published in two (2) daily newspapers and on the OPR’s website within three (3) days of OPR’s receipt of the Application.
What happens when a Challenge is filed against a procuring entity?
- Within three (3) days of receipt of the Application for Review 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; and
- The procuring entity can defend itself by submitting a Reply (Form 9) to the OPR.
How to defend 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 9 is the Reply which must be completed, signed and dated by the Accounting Officer or equivalent in the Respondent procuring entity. This Reply must be submitted via e-mail to the OPR at challenge@opr.org.tt no later than three (3) days after receipt of the OPR’s notification of the Application for Review. The procuring entity must provide details in response to the contention including:
- Reply to the facts concerning each decision or action being challenged;
- Verification or other response to the information provided by 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; and
- The efforts taken by the supplier or contractor to resolve the issue directly with the procuring entity.
Documents and evidence in support of the Reply must be listed in Form 9 and attached. Failure to attach any relevant documents can result in the procuring entity’s inability to rely on same at the Hearing. Form 9 and supporting documents must be submitted to the OPR via e-mail to challenge@opr.org.tt and the Case ID number must be included in the subject line of the e-mail.
If the OPR issued an order of suspension, the procuring entity may, at the time of submitting its Reply, request that the OPR authorise it to award a procurement contract or enter into a framework agreement by showing that:
- A delay in awarding the procurement contract or entering the framework agreement would be contrary to the public interest; or
- There is some other consideration which justifies the awarding of the procurement contract or entering of the framework agreement while the OPR conducts the review
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 procuring entity intends to have an Attorney-at-Law, engineer, quantity surveyor, valuator, agent or such other person recognised by the OPR to represent it in the Challenge Proceedings; and
- Form 1- Confirmation of Service. When Form 9 and supporting documents are submitted to the OPR, these must be served on the Applicant supplier or contractor. Once served, Form 1 -Confirmation of Service must be submitted to the OPR.
All communications to the Hearing Panel relating to any Challenge Proceedings must be through the Administrative Review Secretariat of the OPR.
Failure to file a Reply
If a procuring entity fails to submit a Reply without good cause, the OPR may proceed with its deliberations on the basis of the evidence before it.
For more information
Visit our website at www.oprtt.org or call us at (868) 627-4OPR (4677) or (868) 226-4OPR (4677)
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 are 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
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 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 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 will 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 Procedures 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 thirty (30) days after the Decision.
DAY 30
Parties can apply for the Record of the Hearing (Form 16).
- Hearing Rules and Procedures for Part V Challenge Proceedings
- Prescribed Forms and Instructional Guides
- Electronic Hearing and Filing Rules for Part V Challenges
- Public Procurement and Disposal of Public Property Act
- Public Procurement and Disposal of Public Property (Challenge Proceedings) Regulations