PPA -2007, Chapter 6

Provision Relating to Review of Procurement Proceedings or Decision

47. Application may be Filed before the Chief of Public Entity:

(1) A bidder or proponent may file an application before the chief of the concerned Public Entity for review against any error or decision made by the Public Entity stating the cause for the damages the bidder will suffer or is likely to suffer from the error or breach of the duty, imposed on the Public Entity in carrying out the procurement proceedings or making decision.

(2) The application to be filed pursuant to Sub-section (1) shall be limited with respect only to the proceedings prior to entry into force of the procurement contract.

(3) The application under Sub-section (1) shall have to be filed within the period specified, if any, in this Act for making application and, if not so specified, within seven days from the date of the bidder or proponent having become aware of that the Public Entity has made an error or has dishonored the duty relating to the procurement proceedings.

(4) In the application under Sub-section (1), the applicant shall have to state clearly the commission or omission of an act by the Public Entity that led to such error or breach of duty and the provision of this Act or Regulations or guidelines made thereunder that have been contravened by such decision.

(5) An application for review received after the expiry of the period under Sub-section (3) shall not be processed.

(6) If, from the inquiry made in respect of the application received pursuant to Sub-section (1), an error is found in the procurement proceedings or the Public Entity is found to have breached its duty or such decision is found to be contrary to law, the chief of the Public Entity shall suspend the procurement proceedings and make a decision with reason in writing within five days of receipt of such application.

(7) The decision under Sub-section (6) shall also state how the procurement proceedings shall further proceed on.

(8) If the application under Sub-section (1) is in respect of the procurement proceedings of an amount below the prescribed one, no application can be submitted before the Review Committee for review against the decision made by the chief of the Public Entity pursuant to Sub-section (6).

48. Review Committee:

(1) For review of the application under Section 49, government of Nepal shall constitute a public procurement Review Committee consisting of the following chairperson and member:-

(a) One person from among the former judges of the Appellate Court or Judge of the Appellate Court or the persons retired from the special class post of Government of Nepal. -Chairperson

(b) One person from among the persons retired from the gazetted first class post of the Nepal Engineering Service of the Government of Nepal -Member

(c) One person from among the persons having experiences and expertise on public procurement -Member

(2) While making appointment of a member under clause (c) of Subsection (1), no employee, currently holding a post in a Public Entity shall be appointed.

(3) The tenure of the chairperson or member appointed pursuant to Subsection (1) shall be three years. Provided that in appointing the members for the first time, one member shall be appointed for one year and the other member shall be appointed for two years.

(4) The tenure of the chairperson or member under Sub-section (1) may be extended up to another one term.

(5) The terms and conditions of the service and remuneration and facilities of the chairperson or member under Sub-section (1) shall be as specified by the Government of Nepal.

(6) Before assuming the office, the chairperson or member under Subsection (1) shall have to submit the information of the details as prescribed to the Government of Nepal through the Public Procurement Monitoring Office.

(7) Government of Nepal may remove the chairperson or member in the following conditions:-

(a) If s/he commits misconduct,

(b) If s/he fails to discharge the functions and duties as per the responsibility of the post due to lack of performance capacity or skill, or

(c) If s/he is convicted guilty from a court of law in a criminal offense of moral turpitude.

49. Application May be Filed Before the Review Committee:

A bidder or proponent may file an application for review before the Review Committee in the following conditions:-

(a) If the chief of the Public Entity does not make a decision on the application filed before the Public Entity pursuant to Section 47 in respect of the procurement proceedings of the amount above the prescribed threshold within the period as referred to in Sub-section (6) of the same Section or if the applicant is dissatisfied with the decision made by him/her,
(b) In the matter of the procurement contract concluded pursuant to Section 52.

50. Method of Review:

(1) A bidder or consultant filing an application for review under Section 48 before the Review Committee shall have to file such application in the case of clause (a) of Section 49 within seven days and in the case of clause (b) of the same Section within a period of thirty days from the date of conclusion of such contract.

(2) Within three days of the receipt of application pursuant to Subsection (1), the Review Committee shall notify, by transmitting a copy of such application and document attached to such application, if any, to the concerned Public Entity to provide the information about the action taken in that respect and comments thereon.

(3) Within three days of the receipt of notice pursuant to Sub-section (2), the Public Entity shall have to provide to the Review Committee with information and comments related thereto.

(4) The Review Committee shall have to make decision within thirty days of receipt of the application pursuant to Sub-section (1) on the basis of the information and comments received pursuant to Sub-section (3), the evidence submitted by the applicant along with the application and, if necessary, by hearing both the parties.

(5) In making a decision pursuant to Sub-section (4), the Review Committee may decide as follows:-

(a) Dismissing the application,
(b) In the cases where procurement contract has not been concluded,-

(1) Giving an order to the Public Entity not to commit or make an unauthorized act or decision or to pursue incorrect procedure,

(2) Annulling the whole or in part an unauthorized act or decision made by the Public Entity,

(3) If bids or proposals need to be re-evaluated due to occurrence of error in its evaluation, issuing an order for re-evaluation, citing such error as well, if any, in the evaluation.

(c) Where a procurement contract has already been concluded if the Review Committee considers that such contract should have been awarded to the applicant, recommending to the Public Entity to pay a reasonable amount (quantum merit) to the applicant having regard to the grievances suffered by the applicant.

(6) An applicant filing application for review pursuant to this Section shall have to deposit security as prescribed.

(7) In cases where an application is dismissed pursuant to clause (a) of Sub-section (5), such security shall be forfeited.

51. Procurement Proceedings to be Withheld:

(1) Upon receipt of the notice of the application for review filed pursuant to Sub-section (1) of Section 50, the Public Entity shall have to withhold procurement proceedings until the Review Committee makes a decision in respect of such application.

(2) Notwithstanding anything contained in Sub-section (1), procurement proceedings need not be stopped in the following conditions:-

(a) If the Public Entity informs the Review Committee certifying the matter that there is an urgency to keep the procurement proceedings continuing due to an important public interest lying in the procurement proceedings, or
(b) If the Review Committee fails to make a decision within the period under Sub-section (4) of Section 50,
(c) Where the procurement contract has been concluded.

(3) If the Public Entity does not withhold the procurement proceedings pursuant to clause (a) and (b) of Sub-section (2), it shall have to give information thereof to the Review Committee.

PPR -2007, Chapter 10

Provision Relating to Review

100. Matters to be Stated in the Application to be Filed Before the Chief of Public Entity:

A bidder or proponent desiring to file an application pursuant to Section 47 of the Act for review of procurement proceedings or decision shall state the following matters in the application and sign it: -
(a) Name, address, telephone, fax number and e-mail of the applicant,
(b) If the applicant is a corporate body, power of attorney provided by that body,
(c) Bid number,
(d) Factual and legal grounds for filing application,
(e) Copy of the relevant document.

101. Limitation of Amount:

For the purpose of Sub-section (8) of Section 47 of the Act, an application cannot be filed in respect of the procurement proceedings of an amount less than thirty million Rupees.

102. Description to be Submitted:

Before assuming the office the chairman and members of the Review Committee shall have to submit the following description to the Government of Nepal through the Public Procurement Monitoring Office: -
(a) Curriculum vitae including educational qualifications and experience in the concerned field,
(b) If involved in any trade, business, description thereof,
(c) Description of the property in his/her name and family's name.

103. Matters to be Stated in the Application to be Filed for Review of Procurement Contract:

(1) A bidder or proponent desiring to file an application for review in the matter of procurement contract pursuant to Section 49 of the Act, shall have to sign such application after stating the following matters: -
(a) Name, address, telephone number, fax number and e-mail address of the applicant,
(b) If application is to be filed on behalf of a corporate body, document providing authority to so file application,
(c) Brief description of procurement proceedings,
(d) Where procurement contract has been concluded, date of conclusion of such contract and the supplier, construction entrepreneur, consultant or service provider who has received such contract,
(e) Factual and legal grounds for receiving procurement contact by the applicant,

(f) Factual and legal grounds for not receiving the contract by the receiver of the procurement contract,
(g) If the Review Committee is expected to take special measure to protect the proprietary, commercial and confidential information of the applicant, such measures; and
(h) The actual loss and damages caused to or likely to be caused to the applicant for not receiving the contract.

(2) With the application under Sub-rule (1), the applicant shall have to attach the copies of the documents proving the claim made by him/her. If the document is of the nature that s/he cannot possess, s/he may request to the Review Committee to have such documents produced from the concerned Public Entity.

(3) If the applicant wants the Review Committee to conduct hearing on the matter stated in the application filed under Sub-rule (1), s/he shall have to state the causes and grounds relating thereto.

104. Security Deposit to be kept:

(1) The applicant filing application pursuant to Section 50 of the Act shall have to submit cash amount or bank guarantee equivalent to 0.5 (five after decimal) percent amount of the quoted amount in his /her bid or proposal, having validity period at least of ninety days

(2) If the cash amount or bank guarantee under Sub-rule (1) is not submitted, the Review Committee shall not process the application filed before it.

(3) If the claim made in the application is sustained in making a decision pursuant to the Act and these Regulations, the Review Committee shall have to return such security deposit to the applicant within seven days of such decision made.

105. Method of Sending Application for Review:

(1) A bidder or proponent may himself deliver or send the application to be filed for review before the chief of the Public Entity or Review Committee through post, courier service or electronic means.

(2) If the application sent through post, courier service or electronic means pursuant to Sub-rule (1) does not reach within the time period specified in the Act or these Regulations, such application shall not be processed.

106. Matters to be Stated in the Information and Comments:

(1) The information and comments to be provided by the Public Entity to the Review Committee pursuant to Sub-section (3) of Section 50 of the Act shall contain the factual statement of claim, legal grounds of procurement proceedings, and the copies of the relevant documents.

(2) The Review Committee may instruct the Public Entity to submit the appropriate documents or any portion thereof out of the documents related to procurement.

(3) If the Review Committee considers necessary, it may also grant permission to the bidder or proponent who has not submitted application for review to submit relevant document and evidence

107. Hearing Relating to Review:

(1) If the Review Committee considers necessary to hear both the applicant and the concerned Public Entity, it may conduct hearing after the Public Entity submits the information, comments and documents pursuant to Rule 106.

(2) If a hearing requires to be made pursuant to Sub-rule (1), the Review Committee shall have to notify to the concerned parties specifying time for appearing,

(3) The Review Committee shall have to keep records of the proceedings under this Rule and the concerned party may take copy thereof upon payment of applicable charges.

108. Record of the Decision on Complaint:

The concerned Public Entity shall have to keep the records of the decision made by it, Review Committee or other body with respect to the review and remedial measures taken as regards such decision.