PUBLIC PROCUREMENT LITIGATION IN TANZANIA. A COMPREHENSIVE LEGAL ANALYSIS

  1. INTRODUCTION

Public procurement in Tanzania is a vital component of the country’s economic development, playing a critical role in the allocation and utilization of public resources. It refers to the process by which government entities and other public bodies acquire goods, works, and services needed to deliver public services and undertake development projects. Public procurement is essential for infrastructure development, health services, education and various other sectors that drives economic growth and social development.

  • LEGAL FRAMEWORK

Public procurement in Tanzania is governed by a legal framework designed to promote transparency, accountability, fairness, and competition in the use of public funds. The Public Procurement Act (PPA) of 2011 R.E 2022, and The Public Procurement Regulations, 2013 set out the principles, and procedures that regulate public procurement to promote accountability and value for money in the use of public resources.

  1. PUBLIC PROCUREMENT ACT, 2011 R.E 2022 (PPA)

The public procurement Act, is the primary legislation governing public procurement in Tanzania. The act outlines the principles, rules and procedures for the procurement of goods, works and services by the public entities from the advertisement of tenders to the awarding of contracts. It aims to promote competition, ensure value for money, and prevent corruption in public procurement.

  • PUBLIC PROCUREMENT REGULATIONS, 2013

The public procurement regulations, 2013, complement the public procurement act by providing detailed guidance on the implementation of the act’s provisions. These regulations cover all aspects of procurement, from the preparation of procurement plans and tender documents to the management of contracts and handling of complaints.

  • DISPUTES IN PUBLIC PROCUREMENT

Disputes in public procurement arises when issues occur between procuring entities and bidders or contractors. These disputes may be related to the tendering process, the awarding of contracts, contract performance, or other procurement-related issues. The main causes of procurement litigation in Tanzania include:

  1. Non-Compliance with Procurement Laws: Disputes often arise when procuring entities fail to adhere to the legal requirements stipulated in the PPA (supra) and its regulations. This can include issues like failure to provide equal opportunity to all bidders, bias in the selection process, and not following prescribed procedures for contract awards.
  1. Breach of Contract Terms: After a contract is awarded, disputes can arise if either party fails to fulfill its contractual obligations. Contractors may claim damages for non-payment or delayed payments, while procuring entities may sue for substandard work or failure to meet project timelines.
  1. Challenging Procurement Decisions: Bidders who feel aggrieved by procurement decisions can challenge these decisions through administrative review mechanisms or the courts. These challenges often focus on the fairness of the evaluation process, allegations of corruption, or the application of evaluation criteria.
  2. DISPUTE RESOLUTION MECHANISMS

Tanzania’s public procurement framework provides several mechanisms for resolving procurement disputes:

1.  PUBLIC PROCUREMENT REGULATORY AUTHORITY (PPRA)

The first step in resolving procurement disputes is usually through an administrative review by the PPRA. Aggrieved parties can submit complaints to the PPRA, which then investigates the matter and provides a ruling. The PPRA aims to resolve disputes quickly to avoid delays in project implementation.

Under Section 95(1) and section 96 of the PPA, which states:-

“any tenderer who claims to have suffered or that may suffer any loss or injury as a result of a breach of a duty imposed on a procuring entity by this act may seek a review”. This is also provided under regulation 104 of the public procurement regulations, 2013.

An aggrieved bidder or supplier who feels unfairly treated by a procuring entity can request an administrative review by filling a complaint in writing to the accounting officer of the procuring entity within 28 [EB1] within 7 working days from when the issue arose, such as during the tender evaluation, prequalification, or contract award stages.

The accounting officer is required to respond to the complaint and make a decision within seven days (7) of receiving it. This response must be in writing and should indicate the measures (if any) to remedy the breach. The accounting officer may order actions such as reconsideration of bids, changes to the evaluation process, or other appropriate measures to correct the identified issue.

2. PUBLIC PROCUREMENT APPEALS AUTHORITY (PPAA)

Public procurement appeals authority, is an independent body established to handle appeals and disputes arising from public procurement processes. It provides a platform for aggrieved parties to challenge procurement decisions made by procuring entities or the PPRA.

This is provided under Section 97(1), (2) of the PPA which states that “a tenderer who is aggrieved by the decision of the accounting officer may refer the matter to the appeals authority for review and administrative decision” and regulation 107(1) of the Public Procurement Regulations, 2013.

The aggrieved party must file an appeal to the PPAA within fourteen 14 [EB2]  PPAA within seven (7) days from the date of communication of the decision by the accounting officer, after the PPRA’s decision, Section 97(3) of the Act and Regulation 107 of the Regulations, the PPAA will conduct a formal hearing where the complainant and the procuring entity can present their arguments and evidence.

The PPAA has the authority to make binding decisions on procurement disputes, including the power to nullify decisions made by the procuring entity, direct the procurement process to be redone, or award compensation to the aggrieved party as per section 97(5) of PPA.

3. JUDICIAL REVIEW

 Parties who are not satisfied with the decisions of the PPAA can seek judicial review in the Tanzanian courts, as provided under section 101 (1) of the PPA which states “a tenderer or procuring entity aggrieved by the decision of the appeals authority may, within fourteen days (14) of the da[EB3] te of delivery of such decision, apply to the high court for judicial review”. The High Court of Tanzania has jurisdiction over public procurement matters, and its decisions can be further appealed to the Court of Appeal.

The judicial review process allows the court to review the legality and fairness of the decisions made by the PPRA or the PPAA. The party must file a petition for judicial review in the High Court within the time frame set by the court rules, the court will assess whether the procurement authority acted within its legal mandate and whether the principles of fairness and due process were followed.

The court may uphold the decision of the PPAA or PPRA, or it may quash the decision and order corrective measures such as a re-tender, compensation, or other remedies.

Conclusion

Public procurement litigation in Tanzania is an evolving field, shaped by the country’s efforts to enhance transparency, accountability, and efficiency in the use of public funds. While the legal framework provides robust mechanisms for dispute resolution, ongoing reforms and capacity building are necessary to ensure that the procurement system operates fairly and effectively. As Tanzania continues to develop its public procurement infrastructure, the role of litigation in safeguarding the integrity of the procurement process will remain crucial.


 [EB1]Section 95 of the Act read together with Regulation 104 of the Regulations as Amended)

I think the correct timeline is 7 days. The Regulations or Act was amended. Please confirm the correct position. There is a comprehensive article on the issue in the Breakthrough Attorneys Website. Read it and confirm the position in

 [EB2]section 60(11) of the Act, then the complaint shall be referred to the Appeals Authority within seven days from the date when the tenderer received the decision of the accounting officer or, in case no decision is issued after the expiry of the time stipulated under regulation 106 (6) or when the tender become aware or ought to have become aware of the circumstances giving rise to the complaint or dispute pursuant to section 97 (3) of the Act. 

 [EB3]Cross check timelines

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