Public Procurement (Tribunal) Regulations 2023

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Published on 5th May 2023

These regulations were made in exercise of the powers conferred on the Minister of Finance by section 150 of the Public Procurement Act. 

PART I – INTERPRETATION AND APPLICATION

1. Interpretation
   1. Regulation 2 of the Act provides for definitions of the words: appeal, complaint, applicant, complainant, costs, Registrar, and respondent, which unless the context otherwise requires have to be understood in respect of the meanings prescribed herein.
2. Application
   1. In terms of regulation 3 the scope and application of the Act is in respect of complaints or appeals against any decision or conduct of an Accounting Officer or the Authority in relation to a procurement process or the registration of contractors, declassification, or disciplinary process. 

PART II – COMPLAINT AND APPEALS’ PROCEDURE   

3. Lodging of complaints or appeals

1. Regulation 4 deals with the procedure of lodging complaints or appeals with the Tribunal; as well as the withdrawal of a lodged complaint or appeal. The sub regulation hereunder stipulates the specifications and annexures that are to be included in and attached to the complaint form or the withdrawal form (sub regulations (4) to (7)).  

2. Sub regulation (2) of this section stipulates the procedure to be followed in lodging a complaint or appeal: The complaint or appeal is to be in form A, Schedule 1, filled with the Registrar and made within 14 days from the date the complainant becomes aware of the subject matter of the complaint. And in terms of sub regulation (3), this complaint or appeal is to be accompanied by a non-refundable lodging fee, and a complaint fee which is only refundable if the lodged matter succeeds. 
3. Regulation 5 provides for the procedure in serving a complaint or appeal to the respondent, which is to be done within 7 days of acknowledgment by the Tribunal.
4. Regulation 6 stipulates the procedure to be followed by a respondent intending to make a defence against a lodged complaint or appeal. 
5. Regulation 7 requires a complainant to reply to a defence within 7 days of its receipt. 
6. Regulations 8, 9 and 10 deal with the procedure in respect to claims sought against third parties to a lodged complaint or appeal. 
7. Regulation 11 deals with the consolidation of complaints or appeals arising from the same procurement process. 
8. Regulation 12 provides the procedure in making amendments to a complaint, defence or reply in respect of a lodged complaint or appeal. 

PART III – HEARING PROCEDURE 

4. Hearing procedure
   1. Regulation 13 stipulates the procedure followed in hearing proceedings, of which the decision of the Tribunal shall be quasi-judicial in nature:
      1. Each party to the proceedings is to be summoned prior to the commencement of the proceedings; each party is to appear in person. 
      2. Sub regulation (4) deals with the Tribunal being empowered to require the tendering of relevant evidence from “any” person. In terms of sub regulation (5) this evidence is to be given under oath or affirmation. 
      3. Sub regulation (6) defines what constitutes a “hearing”. 
   2. Regulation 14 deals with the procedure followed where either party to the proceedings, without lawful excuse, fails to attend to a hearing. 
   3. Under regulation 15, the Tribunal has been empowered to make an interim order:
      1. Tribunal may, where it deems to be in the interest of a procurement complained of, suspend the procurement process of the particular project for a period not exceeding 30 days.
      2. Tribunal may also suspend a procurement project where there has been sufficient evidence adduced by the aggrieved party, to demonstrate that the implications stated hereunder are most likely to result due to the execution of the procurement project.
   4. Regulation 16 deals with the various decisions that a Tribunal is empowered to make, and further, the procedure followed in giving those decisions. 
   5. In terms of regulation 17, a party aggrieved by the decision of the Tribunal can, within 30 days of the decision, lodge an appeal with the High Court. Sub regulation (2) of this section then stipulates the procedure to be followed when an appeal is against the Government. 

PART IV – GENERAL PROVISIONS

6. Regulation 14 deals with the procedure followed where either party to the proceedings, without lawful excuse, fails to attend to a hearing.
   1. Sub regulation (2) deals with when these meetings are to be held.
   2. Sub regulation (3) and (4) specifies constituents of those meetings. 
   3. Sub regulation (5) deals with voting and stipulates the voting threshold. 
7. Regulation 19 deals with referral of its decisions on any complaint or appeal to the Attorney General, the Directorate on Corruption and Economic Crime, or any other authority, for further action. 
8. In terms of regulation 20, there shall be a register where a copy of all the Tribunal’s decisions shall be kept; these shall be freely and readily accessible for examination by any person, who shall be permitted to make a copy on payment of a prescribed fee. 
9. Under regulation 22, the Tribunal may order a complainant against whom liability has been established in a hearing to pay a fine as the Tribunal may deem appropriate. 
10. In terms of regulation 22, a party awarded costs shall lodge a bill of cost of taxation of which the Registrar shall tax.
    1. Sub regulation (2) stipulates when costs shall be awarded. 
    2. Sub regulation (3) specifies what is to accompany a bill of costs. 
11. Regulation 23 makes it an offence to submit to the Tribunal any information or document that is false, and such person is liable to a fine not exceeding P500 000 or to imprisonment for a term not exceeding 5 years.
    1. Failing to comply with any order of the Tribunal is an offence attracting a penalty of P500 000 fine or imprisonment of a term not exceeding 5 years.