MANUAL ON PUBLIC PROCUREMENT COMPLAINT PROCEDURE

The Federal Democratic Republic of Ethiopia

Public Procurement and Property Administration Agency

MANUAL ON PUBLIC

PROCUREMENT COMPLAINT

PROCEDURE

Addis Ababa, April 2011

Manual on Public Procurement Complaint Procedure (Version 2, April 2011)

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Manual on Public Procurement Complaint Procedure

Table of Contents

Section 1. GENERAL 1

1.1 Foreword 1

1.2 Background 1

1.3 Context and Scope 1

1.3.1 Principles of the Legal Protection 2

1.3.2 Material Scope – What is Covered? 2

1.3.3 Personal Scope – Who is Covered? 2

1.4 Definitions 2

Section 2. PARTIES TO THE COMPLAINT PROCEDURE 3

2.1 The Board for Review and Resolution of Complaints in Public Procurement

and Property Disposal 3

2.1.1 Establishment of the Board 3

2.1.2 Appointment of the Board Members and Terms of Service 3

2.1.2.1 Board Members 3

2.1.2.2 Term of Service 3

2.1.2.3 Training of the Board Members 3

2.1.2.4 Decisions of the Board 3

2.1.2.5 Meetings of the Board 4

2.1.3 Board Membership 4

2.1.3.1 Resignation of Membership 4

2.1.3.2 Termination of Membership 4

2.1.4 Disclosing Conflict of Interest 4

2.1.5 Board Member Appointment Challenge 4

2.1.6 Powers of the Board 4

2.1.7 Duties of the Board 5

2.2 The Secretariat of the Board 6

2.2.1 Organization of Secretariat 6

2.2.2 Functions of the Secretariat 6

2.2.3 The Register of Complaints for Review 6

2.2.4 Forms 7

2.3 The Public Body 7

2.4 The Public Procurement and Property Administration Agency 9

Section 3. PROCEDURE FOR SUBMISSION OF COMPLAINT FOR REVIEW 10

3.1 Who May Submit a Complaint? 10

3.2 When Complaint May Not be Lodged? 10

3.3 What Can be Subject to the Complaint Procedure? 11

3.4 Contents of Complaint 11

3.5 Evidence 12

3.6 Method of Submission of Complaint 12

3.7 Timing of Complaint Procedure 12

3.8 Consequences of Submission of Complaint 13

3.9 Conciliation and Mutual Agreement 13

Section 4. CONDUCT OF COMPLAINT PROCESS 14

4.1 Review of Complaints by the Public Body 14

4.1.1 Lodging a Complaint 14

4.1.2 Results of Lodging a Complaint 15

4.1.3 Powers of the Public Body Concerning Complaints 15

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4.1.4 Deciding on Complaints 15

4.1.5 Procedure with Bids Submitted in Two Envelopes 15

4.2 Review of Complaints by the Board 16

4.2.1 Lodging a Complaint 16

4.2.2 Receipt and Registration of Complaint 16

4.2.3 Scrutiny 16

4.2.4 Results of Lodging a Complaint 17

4.2.5 Response of the Public Body 17

4.2.6 Powers of the Board Concerning Complaints 17

4.2.7 Complaint Review Process 17

4.2.7.1 Commencement of Complaint Review Process 17

4.2.7.2 Representation 18

4.2.7.3 Hearing 18

4.2.7.4 Evidence 18

4.2.7.5 Assistance to the Board 18

4.2.8 Deciding on Complaints 19

4.2.9 Board Meeting Minutes 19

4.2.10 Publicity of the Board’s Decisions 20

4.3 Review of complaints on misconduct of candidates and suppliers 20

Section 5. ANNEXES 23

5.1 FORM CR-01: Complaint for Review by the Public Body 23

5.2 FORM CR-02: Confirmation of Receipt of the Complaint by the Public Body 25

5.3 FORM CR 03: Decision of the Public Body on Complaint 26

5.4 FORM CR-04: Complaint for Review by the Board 27

5.5 FORM CR-05: Rejection of Complaint for Review by the Board 29

5.6 FORM CR-06: Board’s Notice to the Public Body to Reply on Complaint 30

5.7 FORM CR-07: Reply of the Public Body 31

5.8 FORM CR-08: Secretariat’s Summary of Complaint Submitted to the Board 33

5.9 FORM CR-09: Decision of the Board 35

5.10 FORM CR-10: Secretariat Scrutiny Form 37

5.11 FORM CR-11: Public Body’s Report to the Agency on Misconduct of

Candidates/Bidders/Suppliers 38

Manual on Public Procurement Complaint Procedure (Version 2, April 2011)

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Section 1. GENERAL

1.1 Foreword

In the Federal Democratic Republic of Ethiopia basic legal act regulating questions

related to the public procurement procedures, including those which refer to the legal protection

measures is the Ethiopian Federal Government Procurement and Property Administration

Proclamation No. 649/2009 (hereinafter called the Proclamation) that entered into force on the

date of publication in the Federal Negarit Gazeta No. 60 on 9th day of September 2009.

Apart from the Proclamation, there is also the Federal Government Public Procurement Directive

(hereinafter called the Directive) issued by the Minister of Finance and Economic Development

(hereinafter called the Minister) that entered into force on 8th day of June 2010, which establishes

the following procedures:

(a) Procedure of reviewing complaints presented to the head of a Public Body and to the Board;

and

(b) Procedure of reviewing reports submitted by public bodies to the Public Procurement and

Property Administration Agency (hereinafter called the Agency) on misconduct of bidders and

suppliers.

As regards the institutional set up of complaints on public procurement system in Ethiopia the

basic provision in that regard is Chapter thirteen of the Proclamation and Directive’s Parts X to

XII.

These provisions establish the Board for Review and Resolution of Complaints (hereinafter called

the Board) which is the body responsible for review and settlement of complaints on public

procurement and property disposal and determine its competencies and organization.

The procedure of review of complaints is regulated by the Chapter fourteen of the Proclamation

and Part XI of the Directive.

Legal protection procedure applies to all Federal Government procurement contracts governed by

the Proclamation. Complaints may be lodged at all stages of the procurement procedure.

1.2 Background

The purpose of this Manual on Public Procurement Complaint Procedures (hereinafter called the

Manual) is to assist the Federal Government of Ethiopia’s public bodies, the Agency, and the

Board to manage complaints with regard to proceedings of public procurement.

The Manual also includes necessary information for candidates or bidders about how to submit a

complaint to the head of the public body or, if not resolved, to the Board against any act or

omission of the public body in regard to a public procurement proceeding. It also includes

procedures on submission and review of reports submitted by public bodies to the Agency

concerning misconduct of bidders or suppliers in regard to the execution of public procurement,

submitted to it by public bodies pursuant to article 76 of the Proclamation.

1.3 Context and Scope

This Manual takes account of the Proclamation‘s and Directive‘s provisions dealing with remedies

that are designed to help ensure that the procurement that is not carried out fairly and

transparently will be remedied through complaint procedure.

The purpose of the complaint procedure is to ensure that basic national public procurement

principles and procedures stipulated in the Proclamation and Directive are observed and all

decisions taken by the public body contrary to those principles and procedures may be reviewed

effectively and at the stage when irregularities could be corrected or removed and possible

damage could be still prevented.

Manual on Public Procurement Complaint Procedure (Version 2, April 2011)

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1.3.1 Principles of the Legal Protection

Proclamation and Directive guarantee that complaint procedures respect the following

fundamental principles:

(a). The Complaint procedures are available (principle of availability);

(b). Any actions taken during this procedure should be done within the limits determined by the

Proclamation and Directive (principle of legality);

(c). Complaint procedures do not limit access to those procedures for any eligible entity

(candidate or bidder) and do not violate competition rules (principle of non-

discrimination);

(d). Compulsory Prior Review by the public body (principle of additional procedure);

(e). Decisions taken by the public bodies must be reviewed effectively and, as rapidly as

possible, to minimize disruption to procurement (principle of effectiveness and rapidity);

(f). Submission an application for review to the contracting authority results in immediate

suspension of the possibility to conclude the contract (principle of suspension);

(g). During procedure of reviewing complaints all parties to this procedure should be given a

chance to present their claims and arguments on which they base them to the impartial,

non-biased and independent from all parties review body (adversarial or contradictory

nature of the procedure). Such a body in Ethiopia is the Board which is described in more

detail in Section 2.

1.3.2 Material Scope – What is Covered?1

The Proclamation regulates all Federal Government public procurement procedures of all values,

wherever public bodies and bidders conclude works, goods, services or consultancy services

contracts. It deals also with the competences of the Public Procurement and Property

Administration Agency, the body responsible for the public procurement system, and the Board

for review and resolution of complaints as well as prescribes legal protection measures in the field

of public procurement and property disposal.

Proclamation does not apply to contracts a public body enters into with another public body for

the provision of goods, works, consultancy or other services at cost.

1.3.3 Personal Scope – Who is Covered?

According to the Article 2 of the Proclamation, which explains the meaning of the basic terms

used in the Proclamation, the term Public Body covers any public body, which is partly or wholly

financed by the Federal Government Budget, higher education institutions, and public institutions

of like nature.

1.4 Definitions

For the purpose of this Manual the following words and expressions shall have the meanings

hereby assigned to them:

“Bidder”

means a natural or juridical person submitting a bid;

“Board”

means an entity established under the Proclamation to review and decide on

complaints from candidates, bidders or suppliers lodged in regard to the conduct

of public procurements and disposal of property of the Federal Government;

“Candidate”

means a natural or juridical person invited to take part in public procurement or

seeking to be invited;

“Complainant”

means bidder or candidate submitting a complaint;

“Secretariat”

refers to the office organized within the Agency for carrying out the functions

associated with the organization and procedures of the Board, as set out in the

Proclamation and Directive.

1 Proclamation, Article 3;

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Section 2. PARTIES TO THE COMPLAINT PROCEDURE

2.1 The Board for Review and Resolution of Complaints in Public

Procurement and Property Disposal

2.1.1 Establishment of the Board2

The Board is established under the Proclamation to review and decide on complaints from

candidates lodged in regard to the conduct of public procurements and disposal of property of the

Federal Government.

The Board is accountable to the Minister.

2.1.2 Appointment of the Board Members and Terms of Service3

2.1.2.1 Board Members

The Minister shall appoint five persons representing the private business sector, the relevant

public bodies, Agency, and public enterprises to serve as members of the Board for review and

resolution of complaints lodged by candidates or bidders in public procurement. Board members

shall be drawn from:-

1. The Ministry of Finance and Economic Development Chairperson

2. The Chamber of Commerce Member

3. Public bodies Member

4. Public enterprises Member

5. Public Procurement and Property Administration Agency Member

Minister shall appoint one more member to be drawn from the Agency, who shall serve as

secretary and expert advisor to the Board with no voting power.

Eligibility for membership of the Board shall be based on knowledge and experience in public

procurement, good manner and ethical standing.

Minister shall determine the amount of allowance to be paid to the members of the Board and the

mode of payment.

2.1.2.2 Term of Service

The term of service of members of the Board shall be three years. However, considering their

suitability for the job in terms of their performance and their integrity, their term of service may

be extended for another three years.

Any member of the Board failing to properly discharge his/her duty may be replaced at any time

before his/her term of service expires.

2.1.2.3 Training of the Board Members

All members of the Board shall be required to undertake the specialized training organized by the

Agency, after their appointment. Training for members of the Board shall be conducted as and

when appointment is made by the Minister.

The Agency shall, in cooperation with the Chairman of the Board, organize a program of

continuing training for the members of the Board in areas of relevance.

2.1.2.4 Decisions of the Board

2 Proclamation, Article 70;

3 Proclamation, Article 71, Directive, Article 36;

The Board shall make decisions by consensus without prejudice to the possibility that decisions

may also be made by vote if necessary. The chairman of the Board shall have a casting vote

where a vote is tied.

2.1.2.5 Meetings of the Board4

(a). Members of the Board shall meet once a week regularly. However, they may convene more

than once a week if the complaints to be reviewed arise.

(b). There shall be a quorum where the majority of members are present in a meeting.

(c). The chairperson may represent a member to act on his behalf where he can not attend a

meeting of the Board for good reason.

2.1.3 Board Membership

2.1.3.1 Resignation of Membership5

Any member of the Board, including the chair person, may resign from the Board at any time by

tendering a letter of resignation to the Minister where the resignation is accepted by the Minister.

2.1.3.2 Termination of Membership6

The Minister may terminate membership of the Board of any member for any of the following

reasons,

(a). Where he can not continue to discharge his duty by reason of mental or preventive

physical disability;

(b). Where he is convicted of crime by a competent court; or

(c). Where he is found to be involved in ethical or disciplinary misconduct.

2.1.4 Disclosing Conflict of Interest7

Every person appointed to the Board must be and must remain independent of the parties to the