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Dispute Resolution

Section 2.5 of volume 1 of the GoJ Handbook of Public Sector Procurement Procedures (2014) states the following:

 

2.5 Complaints and Appeals

 

Any contractor, who claims to have suffered loss or injury due to a breach of these procedures by the Procuring Entity, may seek a review of the specific procurement process. Notwithstanding the foregoing, it should be noted that the following are not

Subject to review: (i) the selection of the method of procurement and (ii) the decision by the Procuring Entity to reject all tenders, proposals, offers or quotations.

 

The Administrative Complaints Review Process comprises the following:

 

a)      Review by the Procuring Entity;

b)      Review by the National Contracts’ Commission;

c)       Review by the Procurement Appeals’ Board; and

d)       Review by the Financial Services Commission (complaints in relation to an Insurance Broker).

If an aggrieved Bidder fails to get adequate redress from the administrative review process, the final option is for a Judicial Review.

 

Note: Complaints and appeals will not automatically stop the contract award process.

 

 

2.5.1 Review by the Procuring Entity

 

Complaints shall be received by the Procuring Entity within twenty (20) days of the date the contractor became aware that the circumstances giving rise to the complaint had occurred.

 

On receipt of a complaint, the Head of the Procuring Entity shall address it in accordance with the procedures as outlined here.

 

a)      Within fourteen (14) days of the receipt of a complaint, issue a written decision to the complainant, stating the reasons for the decision and indicating that any appeal of the Decision shall be lodged with the NCC within fourteen (14) days of the contractor’s receipt of the p-procuring Entity’s decision. However, if the complainant and the Procuring Entity have reached an agreement prior to that, it should also be put in writing.

 

b)      Appeals shall be addressed to the NCC and copied to the Head of the Procuring Entity. The decision of the Procuring Entity shall be final, unless an appeal has been lodged within the fourteen (14) - day period.

 

c)       A copy of all complaints and the decisions arising from these complaints shall be maintained in the Procuring Entity’s record.

 

 

2.5.2 Review by the National Contracts’ Commission

 

A contractor may appeal a decision made by the Head of the Procuring Entity. The contractor’s appeal must be directed to and received, in writing, by the NCC within fourteen (14) days of the contractor’s receipt of the Procuring Entity’s decision. The appeal shall contain a) the complaint addressed to the Procuring Entity; b) The Procuring Entity’s decision; and c) the rationale upon which the contract or has relied in determining the validity of the decision against which he/she has appealed. The NCC shall, within fourteen (14) days of receipt of the appeal, recommend an appropriate resolution, a copy of which shall be submitted to the Head of the Procuring Entity, the contractor and any other person deemed appropriate. Should the Procuring Entity fail to comply with the recommendation of the NCC, the contractor may institute proceedings for review by the Procurement Appeals’ Board.

 

Note: A copy of all appeals and the recommendations made shall be maintained in the record of the procurement

 

2.5.3 Review by the Procurement Appeals’ Board

 

A contractor may seek to appeal a decision made by the National Contracts’ Commission (NCC). The contractor’s appeal must be directed and received in writing by the Procurement Appeals’ Board within fourteen (14) days of the contractor’s receipt of the NCC’s decision. The appeal shall contain:

 

a)      The complaint addressed to the NCC;

b)       The NCC’s decision; and

c)       The rationale upon which the contractor has relied in determining the validity of the decision to appeal.

 

The Procurement Appeals’ Board shall, within fourteen (14) days of receipt of the appeal, recommend an appropriate resolution, a copy of which should be submitted to the Head of the Procuring Entity, the NCC, the contractor and any other persons deemed appropriate. Should the NCC and the Procuring Entity fail to comply with the recommendations of the Procurement Appeals’ Board, the contractor may institute proceedings for a judicial review.

 

Note: A copy of all appeals and the recommendations made shall be maintained in the record of the procurement

 

2.5.4 Review by the Financial Services Commission

 

The Financial Services Commission shall become involved in the adjudication process

Only with respect to complaints regarding the following:

 

a)      If an Insurance Broker (“Broker”) has a genuine complaint regarding the conduct of an Insurer who is deemed to have acted prejudicially in respect of the Broker’s proposal, a formal complaint should be submitted to the FSC Insurance Division.

 

b)      A copy of the complaint should be forwarded to the Ministry of Finance’s, Procurement and Asset Policy Unit, as well as the entity associated with the tender in question.

 

2.5.5 Judicial Review

 

The Courts have jurisdiction over actions pursuant to the Handbook, and petitions for judicial reviews of decisions made by reviewing bodies, or of the failure of those bodies to make a decision within the prescribed time limits.

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