The Court of Appeal of Tanzania, which is the supreme judicial authority in the country, has found itself on the receiving end of a judgement by an administrative tribunal.
The Public Procurement Appeals Authority (PPAA) ruled that the court flouted the public procurement regulations in awarding a $344,915 (Sh450 million) tender.
The Authority subsequently ordered the court to restart the tender it had awarded to Emerging Markets Group and its associate, Rex Attorneys, for training modules and provision of trainers in commercial law skills.
The decision came as an embarrassment to the Judiciary which is struggling to clear its image of growing allegations of corruption among its junior staff.
"Having considered all the facts and evidence, the authority concluded that, the evaluation process did not comply with the law and therefore the award thereof is a nullity in the eyes of the law,” observed the authority. The Registrar of the Court of Appeal, Mr Francis Mutungi, could not be reached yesterday to comment on whether or not the judiciary would appeal against the decision.
It all started in December, 2007 when the court invited expression for interest for provision of consultancy services to develop training modules in commercial justice (commercial law legal skills) and to provide technical resource person for the initial roll-out of the training.
Two firms, Emerging Markets Group Limited and Kilimanjaro International Corporation, submitted tenders before they were subjected to financial as well as technical evaluation. After a long evaluation process, the court awarded the tender to Ms Emerging Markets Group Limited and its associate, Rex Attorney.
But before the execution of the contract, Kilimanjaro International Corporation expressed dissatisfaction with disqualification, alleging that the evaluation process had been marred with discrimination, ambiguity and was done in total disregard of value for money procurement standards and practice speculated under the Public Procurement Act.
The appellant argued, for instance, they were surprised to learn that the venue for opening ceremony of financial proposals was arbitrarily and capriciously changed by the court in the final minutes, an act which denied them an opportunity to witness the opening.
"None of the parties were advised before hand of the change of venue except for the representative of Rex Attorneys (an associate of the winning bidder) who was represented at the rescheduled venue when financial proposals were being opened,” the appellant complained.
The authority observed that the Court of Appeal contravened the law in changing the venue without a prior notice to the respective parties.
"The respondent (Court of Appeal) was obliged to notify the respective consultants in writing, any change relating to date time or venue," PPAA observed. Responding to the allegation, the appellate court defended itself that the change of venue was due to unpredictable circumstances a few hours before the opening ceremony.
But PPAA observed that the Court of Appeal’s contention that “unpredicted circumstances” occurred few hours before opening was not excusable.
"The authority agrees with the appellant that the opening ceremony lacked transparency and that the opening of financial proposals was not properly conducted. The conduct of the respondent connotes lack of accountability,” said PPAA. Earlier, the appellant requested the authority to disqualify Rex Attorney because its association with Emerging Markets Groups by way of sub-consultancy was improper for not complying with applicable law.
The appellant contended that Rex Attorney was not subjected to eligibility criteria as the law requires. Under public procurement regulations, suppliers, consultants and contractors have to first meet appropriate criteria set out by the procurement entity before participating in procurement proceedings.
According the law, a shortlisted consultant who intends to associate with a consultant who have not been shortlisted, must first be subjected to the eligibility criteria.
"The authority revisited the evaluation report pertaining to the technical proposal and noted that it does not indicate that the sub-consultant (Rex-Attorneys) were subjected to eligibility criteria as required under section 46 (1) of the public Procurement Act.
PPAA further said that since Rex Attorneys was not shortlisted, it was mandatory for them to be subjected under eligibility criteria.
"In the absence of a sub-consultancy contract between Emerging Markets Group and failure to subject Rex Attorneys under eligibility criteria, the authority concluded that the association between them was not in accordance with the law,"PPAA said.
Other irregularities which were detected by the authority during the appeal included failure by the Court of Appeal to reply to the appellant’s letter, requesting administrative review of the tender process.
"The authority is of the view that the respondent’s act of not responding to the letter was not proper,” says PPAA. PPAA also expressed disappointment over failure by key official of the court of appeal to represent the organ during the appeal.
“The respondent was represented by only a state attorney who was not accompanied by a technical person who could have elaborated on some of the technical matters related to the tender process.
