A. When and To Whom to Complain
1. Under Regulation 74 (1) of the Public Procurement Regulations 2014, an intending or actual bidder who claims to have suffered, or is likely to suffer, from a breach of the said Regulations, may lodge a written complaint at any stage of the procurement proceedings. Under Regulation 74 (2), the complaint will only be considered if it identifies the specific act that is alleged to contravene the Regulations or the requirements of the bidding documents for that specific procurement transaction.
2. If the alleged contravention occurs during the bidding or bid evaluation stage prior to a contract being signed, the complainant shall submit his complaint to the head of the procuring entity, being either the Central Procurement Unit (CPU) for all major procurement, or the concerned department of a line ministry for minor procurement, as identified in the bidding documents. The complaint will not be entertained if it was submitted more than 14 days after the complainant became aware of the circumstances giving rise to the complaint, or when the bidder should have become aware of those circumstances, whichever is earlier.
B. Complaints Register
3. The Head of the CPU shall maintain a Complaints Log, which may be a log book kept under lock and key or password protected computer file backed up on a separate storage device. All complaints received by departments of a line ministry shall also be registered in the Complaints Log held by the Head of the CPU.
4. The following shall be recorded in the Complaints Log:
– the date, time and mode of receipt of the complaint;
– the name of the person receiving the complaint and entering the details;
– a reference number allocated to each complaint;
– the complainant’s name and contact details;
– details of the complaint including the names of individuals, companies or entities that are the subject of the complaint;
– date of first consideration of the complaint;
– details of further investigations ordered;
– summary of investigation findings;
– date of final consideration, decision reached, agreed action;
– date of notifying complainant and other concerned parties of decision and remedial action;
– date of follow-up to check that remedial action has been taken; and
– date of case closure.
C. Consideration of Complaint
5. The Head of the procuring entity receiving the complaint is responsible for investigating the complaint but may seek assistance on the investigations from members of staff. If a complaint includes accusations of wrongful action by the Head of the procuring entity, it shall be referred to the Chairman of the Procurement Review Committee who shall delegate an appropriate senior member of staff of the concerned ministry to investigate the complaint.
6. Unless the complaint is resolved by mutual agreement, the Head of the procuring entity shall suspend the procurement proceedings unless he is satisfied that urgent public interest considerations require the procurement to proceed.
7. The Head shall issue a written decision on the complaint within five days of its receipt and, if the complaint is upheld, describe the corrective measures to be taken.
D. Appeal to a Review Panel
8. If no decision is issued by the Head within five days or if the complainant is not satisfied by the decision, the complainant may appeal to the Minister responsible for finance for the complaint to be considered by a Review Panel under Regulation 77(2) (b).
9. The Review Panel shall consist of a minimum of three members selected from the List of Specialists maintained by the CPU as prescribed in Regulation 76. The selection of Specialists shall be by way of open competition and on such terms and conditions as the Procurement Review Committee may set. They shall be selected in accordance with the following criteria:
(a) a person with a legal background;
(b) a person with experience in the area of public procurement;
(c) a person who is not a public officer within the public service;
(d) a person who is trustworthy and independent.
10. A person is disqualified from selection as a member of a Review Panel if he or she is:
(a) under 21 years of age;
(b) has already been convicted in Tuvalu or elsewhere of an offence punishable by death or by imprisonment for a term of 2 years or more;
(c) has been adjudged bankrupt under a law of Tuvalu or elsewhere, and has not been discharged;
(d) a member of parliament.
11. Within 7 days of receiving a complainant’s appeal, the Minister shall appoint a Review Panel and the Chairperson of the Panel for the duration of its consideration of that appeal. At its first meeting, the Review Panel shall define what further investigations it considers necessary into the original complaint and select one or more of its members to carry them out.
E. Confidentiality of Review Panel’s Consideration
12. The Review Panel shall maintain confidentiality during its investigation and consideration of appeals. The source of the original complaint and appeal and any person, company or entity accused of wrongdoing, shall not be named until after the Review Panel has presented its decision. Investigation findings should not be released beyond Panel members.
F. Suspension of Procurement Proceeding
13. Complaints lodged within the time limits specified in the Regulations will cause the procurement proceedings to be suspended until the Review Panel issues its decision. The procuring entity may request the Review Panel to lift the suspension if it would cause disproportionate harm to the public interest, the procuring entity or to other suppliers and contractors. Agreement by the Review Panel to lift suspension permits the procuring entity to continue with the procurement procedure up to evaluation of bids and recommendation of contract award but does not allow any contract to be signed before the decision of the Review Panel is issued.
G. Decision of a Review Panel
14. The Review Panel shall endeavour to make a written decision on the appeal, including the corrective measures to be taken, within 14 days of being selected. If it needs further time for investigations, it shall inform all parties (the Minister, the Head of the procuring entity and the complainant) in writing not later than the 14th day after selection, how much more time is needed. Persons, companies or entities accused of wrongdoing must be given a fair opportunity to present their side of the case.
15. The Review Panel may dismiss an appeal for any of the reasons in Regulation 78 (3). When an appeal is upheld, the remedies that may be ordered by the Review Panel include those described in Regulation 78 (4) and the Review Panel’s decision is binding on both parties.
H. Cancellation of a Contract
16. The Review Panel may recommend to the Minister to cancel a contract if it determines that either party to the contract or any of its personnel or agents have directly or indirectly engaged in fraud and corruption in securing or awarding a contract or implementing the contract, as per Regulation 78 (5).
17. The spirit of the Procurement Complaints and Appeals Procedure is one of transparency and fairness. The Procedure shall be published on the procurement website and the Government Notice Board.