The Public Procurement Amendment Act, 2022 was promulgated on 8 August 2022 and aims to update and amend the Public Procurement Act 15 of 2015 (“Act”). This Act remains problematic as it contains ambiguous wording and very short timelines within which actions can be taken. The amendment is a welcome improvement and clarification.
The most noteworthy amendment has been made to sections 55 and 59 of the Act, which deal with the award of procurement contracts by the Central Procurement Board of Namibia and/or a public entity and the review thereof.
It is a general requirement that the board/public entity must award a procurement contract to the bidder with the lowest evaluated substantially responsive bid. All bidders must be informed of the board’s/public entity’s intention to award the bid to the successful bidder in terms of section 55(4) of the Act. The unsuccessful bidders must then be provided with 7 calendar days to apply for reconsideration by the board/public entity of the selection of an intended bid award.[1]
If an application for reconsideration is delivered by an unsuccessful bidder, the board/public entity must within 7 calendar days of receipt of the application notify such bidder of its decision.[2] If the board/public entity fails to respond or elects not to reconsider the selection of a bid award the bidder may then within a further 7 calendar days launch review proceedings in terms of section 59 of the Act.
Any review application in terms of section 59 of the Act must contain the grounds for review, all supporting documents and be accompanied by an application fee of
N$ 5 000.00. It must also be lodged with the Review Panel and copies must be served on the relevant public entity as well as all interested persons. The public entity and interested persons then only have 2 calendar days to file a replying affidavit with the Review Panel.
A procurement contract may not be awarded or signed during the aforesaid period and any contract awarded or agreement signed during such standstill period is invalid from the outset. Section 59 also no longer provides that a review application does not suspend the award of a procurement contract and it seems that the review and/or challenge of a bid award must be resolved before it is awarded.
It is noteworthy that all remedies provided for in the Act must be followed before any litigation can be launched. This means any unsuccessful bidders must first deliver a request for reconsideration, then launch review proceedings to the Review Panel in terms of section 59 of the Act and only thereafter may any review proceedings in the High Court be launched.
The Act provides extremely short time periods for enforcing its remedies and we suggest that you immediately contact us should you consider challenging the award of a bid and/or opposing any review proceedings.
Disclaimer
Kindly note that this note is not intended to be legal advice. The article is distributed for information purposes only and Cronjé Inc or its employees will not be liable for any direct or indirect loss that may be suffered as a result of reliance on the content of this note. The is confined to matters of Namibian law, as at the date hereof. In the event that the content hereof is relevant to any reader, we advise that the reader is to approach their attorney for legal advice.
[1] Section 55(4A) of the Act;
[2] Section 55(4A) of the Act;
