Respondent Procuring Entites
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 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 ChallengeThe 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 email@example.com 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.
- 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
- 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.
Failure to file a ReplyIf 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 informationVisit our website at www.oprtt.org or call us at (868) 627-4OPR (4677) or (868) 226-4OPR (4677)