SISCPA SA Ruling

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM IN THE SUB-REGISTRY AT DAR ES SALAAM MISCELLANEOUS CAUSE NO. 4815 OF 2024 (Arising from Miscellaneous Cause No. 36 of 2023)

IN THE MATTER OF APPLICATION FOR ORDERS OF CERTIORARI AND IN THE MATTER OF THE LAW REFORM (FATAL ACCIDENTS MISCELLANEOUS PROVISIONS) ACT, CAP 310 [R.E 2019] AND IN THE MATTER OF THE PUBLIC PROCUREMENT ACT, CAP 410 R.E 2022

AND

IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW TO CHALLENGE

THE DECISION OF THE PUBLIC PROCUREMENT APPEALS AUTHORITY FOR APPEAL CASE NO.03 OF 2023-24

BETWEEN SICPA SA………………………………………………………………………APPLICANT

VERSUS

THE PUBLIC PROCUREMENT APPEALS AUTHORITY (PPAA).............................................. 1ST RESPONDENT M/S AUTHENTIC INC .......................................................... 2ND RESPONDENT TANZANIA BUREAU OF STANDARDS .................................. 3RD RESPONDENT HON. ATTORNEY GENERAL .. …………………………………….4th RESPONDENT GLOBAL FLUIDS INTERNATIONAL (T) LIMITED ……………………………………………………………………………5THRESPONDENT 1

RULING 5 th Sept & 15 th N ov 2024 MKWIZU, J This Judicial Review application seeks to challenge the decision rendered by the Public Procurement Appeal Authority( 1st respondent) on the 11th day of August 2023, which nullified the contract award for Public Procurement Tender No. PA/044/2022-2023/HQ/G/25 awarded to SICPA SA by the Tanzania Bureau of Standards (the 3rd Respondent) for the supply of fuel markers (under a Framework Agreement), plastic cylinders, metal jerricans, a fuel dosing system, and a fuel marker detection system. The factual background gathered from the pleadings reveals that following a successful procurement process completed on June 7, 2023, the 03rd Respondent notified the Applicant of its intention to award the Tender. Subsequently, on June 16, 2023, the 3rd Respondent formally notified the Applicant of the successful award of the Tender. The Applicant’s competitor, Authentic Inc. (the 2nd Respondent), expressed dissatisfaction with the procurement process. On the 20th of June 2023, she applied for administrative review to the 3rd Respondent, contesting the intention to award the Tender to the Applicant. In response, on the 23rd of June 2023, the 3rd Respondent issued a decision 2 rejecting the 2nd Respondent’s complaint. Following the determination of the administrative review, the procurement contract was duly executed between the Applicant and the 3rd

Respondent on the 26th of June 2023. In furtherance of her grievances, the 2nd Respondent Authority lodged a formal complaint challenging the decision of the 03rd Respondent, culminating in Procurement Appeal Case No. 03 of 2023-24 before the Public Procurement Appeals Authority (1st Respondent). The Appeals Authority subsequently allowed the appeal, nullifying the 3rd Respondent’s award to the Applicant and the binding contract executed between the Applicant and the 3rd Respondent. The applicant, the successful bidder, is aggrieved by the 1st respondent’s decision; hence, this Judicial review application section 17 (2) of the Law Reform ( Fatal Accidents and Miscellaneous Provisions) Act ( Cap. 310, R.E 2019) and Rules, 4, and 8 (1) (a) (b) and 2 of the Law Reform ( Fatal Accidents and Miscellaneous Provisions) Judicial Review and Fees) Rules, 2014, Government Notice Number 324 of 2014 and section 101 (1) of the Public Procurement Act, Cap 410, seeking an order of Certiorari quashing the whole of the decision of the 1st Respondent in Procurement Appeal Case No. 03 of 2023-24 on following grounds:- 3 (a) The Public Procurement Appeals Authority Acted Ultra vires i. That, the Procurement Contract for tender No. PA/044/2022-2023/HQ/G/25 for the Supply of Fuel Marker (under Framework Agreement), Plastic cylinders, Metal Jerricans, Fuel Dosing System and Fuel Marker Detection

System for Tanzania Bureau of Standards had already been signed by and between the Applicant and the 03rd Respondent and commenced to be executed since 08lh July 2023. ii. The decision of the 1st Respondent was improperly procured as the 01st Respondent determination of the Appeal No. 3 of 2023/2024 is Ultra Vires the Public Procurement Act Cap. 410 and its Regulations. (b) The 01” Respondent erred in determining the Appeal filed out of time i. That, the 01s' Respondent erred to determine the 2nd Respondent's Appeal since the 02nd Respondent complaint to the 03rd Respondent was filed out of time. ii. That, the 1st respondent erred to determine the 2nd Respondent's Appeal for lack of the decision by the Procuring Entity capable of being Appealed against. (c) The 1st Respondent Decision is embarrassing to the Applicant. 4 That, the 1st Respondent decision in Procurement Appeal No. 3 of 2023-24 is unlawful, illogical, and irrational in that the 1st Respondent reached a wrong decision that the Applicant did not disclose litigation history (final judgment) and information. With the court's permission, the review application was addressed through written submissions, and I appreciate that all parties adhered to the filing schedule. However, when the matter was scheduled for mention to set a ruling date on 5th September 2024, the counsel for the 2nd Respondent raised a preliminary

objection, claiming that the judicial review application is tim e-barred . Due to the significance of this point, the parties were permitted to present oral arguments on this legal point, and it was decided that both the preliminary objection and the main application would be considered together only that the resolution of the main application would be deferred pending the outcome of the preliminary objection. Submitting in support of the preliminary point, Mr Audax Vedasto argued that the application for review was submitted on 7th March 2024, seven months and 26 days after the 1st respondent’s decision dated 11th August 2023 contrary to section 101(1) of the Public Procurement Act, which 5 mandates that a judicial review must be filed within 14 days of a contested decision. He contended that Rules 4, 8(1)(a), (b), and 8(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedures and Fees) Rules 2014, cited in the Chamber summons, establish a distinct computation period for judicial review. He noted a significant conflict between this rule and Section 101 of the Procurement Act, which requires a filing period of 14 days from the date of the decision being reviewed, highlighting a conflict between subsidiary legislation and principal legislation. Citing to the court section 26 (1) of the Interpretation of Laws Act, Cap 1, and the decision of

Nayas Hassan Khan Alias super Najumnisa Bus Services V SUMATRA, Civil Appeal No. 14 of 2014,(Unreported), he suggested that the conflict resolution should adhere strictly to the timelines delineated in the Principal Act, thereby rendering the Review application time-barred. The rationale for this position rests on two foundational principles, he said; First is the universally accepted principle that specific statutes take precedence over general laws and second that the PPA contains two express provisions directing how to resolve such conflicts, if any, between this Act and any other law and he named sections 2(5) and 4(1) of the PPA. 6 He contended that while judicial review generally necessitates leave, GN No 324 of 2914 apply to cases without a specific stipulated legal procedure. He cited The Tanzania Teachers Union v. The Chief Secretary and Others, Civil Appeal No. 96 of 2012 (unreported), expressing his concern that the requirement for leave to pursue judicial review impedes a party’s ability to contest a decision effectively and that a court decision affirming the timeliness prescribed by GN No 324 of 2014 in this application would require amending section 101(1) of the Public Procurement Act to include provisions for granting leave, thus altering the original legislative intent. He relied on an excerpt from the book by N.S. Bindra’s Interpretation of Statutes urging

the court not to read an implicit requirement for leave into section 101(1) of the Public Procurement Act. Lastly, he noted that the right to seek leave for judicial review could only have been implied if the application for review was made within the 14 days prescribed by law, and he concluded by urging the court to declare the application time-barred. Mr. George Bega, advocate for the applicant, expressed his concern over the 2nd respondent’s advocate's misinterpretation of the rules concerning the preliminary objection. Citing the case of Barclays Bank Tanzania Limited v. Phylisiah Hussein Mcheni, Civil Appeal No. 19 of 2016( 7 Unreported), he sought guidance from the Court of Appeal on reconciling discrepancies among the Labour Institutions Act No. 6 of 2004, the Employment and Labour Relations Act (ELRA) of 2004, and the Limitation Act, emphasizing the legislature's awareness of the Limitation Act from 1971. He noted the historical context of the Law Reforms (Fatal Accidents and Miscellaneous Provisions) Act, which has been in effect since May 13, 1955. He contrasted it with the Public Procurement Act, Act No. 3 of 2001, which has undergone multiple amendments pointing out that Section 101(1) of the Public Procurement Act permits any aggrieved party to seek judicial review within 14 days but asserts that it only addresses substantive matters and lacks procedural

guidelines. He argued that since the Public Procurement Act is not exhaustive and was enacted with consideration of the Law Reforms Act, the overarching legal framework for judicial review derives from the Law Reforms (Fatal Accidents and Miscellaneous Provisions) Act, and the Judicial Review Procedure and Fees Rules of 2014 in which an application for judicial review must be preceded by an application for leave, as a mandatory procedural requirement for such applications. He added that section 101(1) of the Public Procurement Act (PPA) mandates filing a review application within 14 days following the decision's 8 delivery. However, he emphasised that pursuant to Rule 8(b) of the Law Reforms (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, an application for judicial review must be preceded by an application for leave, which also falls within a 14-day timeframe from the decision granting leave. In this case, he said, the decision of the 1st Respondent was rendered on August 11, 2023, as detailed in paragraphs 13(a), (b), and (c), and paragraphs 18(a), (b), and (c) of the applicant's affidavit and statements and the application for leave was filed and subsequently admitted by the court on August 23, 2023, thus complying with the statutory requirements stressing that the claim that seven months and 26 days have elapsed since the 1st

Respondent's decision is misaligned with the facts and, therefore, lacks merit. Mr Francis Wisdom, the learned State Attorney for the 1st, 3rd and 4th respondent, agreed with the applicant's counsel, adding that the challenge of timeliness should have been based on Rule 8(1)(b) of the Law Reforms (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules 2014, which is not applicable in this case. He asserted that, since leave has been granted, this Court is functus 9 officio, and the 2nd respondent is improperly attempting to contest the court's order granting leave for judicial review through indirect means. Seemingly in the alternative, Mr. Wisdom argued for a holistic interpretation of the law, critiquing the 2nd Respondent for misreading section 101 of the Public Procurement Act (PPA). He pointed out that section 19(3) of the Law Reforms (Fatal Accidents and Miscellaneous Provisions) Act requires obtaining leave and acknowledges shorter timelines in other statutes, including the shorter period outlined in section 101(1) of the PPA, which corresponds with Rule 4 of GN No.

324. To him, Rule 2 of GN No 325 of 2014 provides that the rules will apply to prerogative orders, Mandamus, prohibition and certiorari, and Rule 5 (1) of GN No 325 of 2014 makes obtaining leave mandatory before applying for judicial review and they also provide how leave may be applied. He concluded that the Law Reforms Act and its rules constitute the primary regulatory framework for judicial review procedures and take precedence over general matters. He supported his stance with the case of Emma Bayo v. The Minister for Labour and Youth Development and two others, civil Appeal No 79 of 2012,( CAT) page 7, which affirmed that applications for prerogative orders must follow a successful leave application. 10 Mr Vedasto's rejoinder submissions reiterated his submission in chief, so will not be reproduced here. I have strenuously considered the party's submissions for and against the preliminary objection raised that the application for judicial review is time- barred for being outside the 14 days prescribed under section 101 of the PPA. I have read the section. It reads. “101.-(1) A tenderer or procuring entity aggrieved by the decision of the Appeals Authority may, within fourteen days of the date of delivery of such decision, apply to the High Court for judicial review. The section clearly mandates that an aggrieved party must seek judicial review in a court of law within 14

days of the contested decision. This implies that anyone dissatisfied with a decision by the Public Procurement Appeals Authority has a strict 14-day deadline to initiate the judicial review process. However, the specific procedural steps are not outlined within the Act itself. It is common knowledge that in Tanzania, the framework for judicial review is governed by the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, along with the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 11 2014. These regulations provide the necessary guidelines for how an individual can properly present their case to the court for prerogative orders. Section 17 of the main Act provides:- 17(2)In any case where the High Court would but for subsection (1) have had jurisdiction to order the issue of a writ of mandamus requiring any act to be done or a writ of prohibition prohibiting any proceedings or matter, or a writ of certiorari removing any proceedings or matter into the High Court for any purpose, the Court may make an order requiring the act to be done or prohibiting or removing the proceedings or matter, as the case may be. (4)I n any w ritten law , references to any w rit of m andam us, prohibition or certiorari shall be construed as references to the corresponding order and references to the issue or aw ard of any such w

rit shall be construed as references to the m ak ing of the corresponding order.( Emphasis added) The emphasis here is pegged on subsection (4), which specifically indicates that when a law mentions "writs" such as mandamus, 12 prohibition, or certiorari (judicial review remedies), these should be understood as referring to the equivalent judicial orders granted by the court under the above provisions. In that context, even the judicial review mentioned in Section 101 of PPA is to be referenced to the Judicial review remedies availed to a party by The Law Reform (Fatal Accidents and Miscellaneous Provisions) Act. Now, as to the procedural law, Rules 2, 3, 4 and 5, on GN No 324 of 2014 for instance says: “2. These Rules shall apply to applications for the prerogative orders of mandamus, prohibition and certiorari- 3. In these Rules, unless the context otherwise re- quires- "Judicial review" for the purposes of these Rules shall mean an application for prerogative orders of mandamus or prohibition or certiorari.

4. A person w hose interests have been or believes w ill be adversely affected by any act or om ission, proceeding or m atter, m ay apply for judicial review . 5.-(1) An application for judicial review shall not be m ade unless a leave to file such application has been granted by the court in accordance w ith these R ules.”( emphasis added) The provisions allow an individual who believes their interests have been, or may be, negatively impacted by a specific action or omission to seek 13 judicial review, unequivocally requiring leave as a prerequisite condition before applying for judicial review. The explicit use of the term "shall" reinforces the binding nature of these requirements, thereby underscoring that compliance is not optional but obligatory. This means that leave is an integral part of the judicial review process, without which the judicial process cannot be considered. Iam supported by the Court of Appeal decision in AG v Wilfred Onyango Mganyi and 11 others, Cr. Application No 276 of 2006 ( Unreported) where it was observed thus: The application for leave to apply for the order is simply a prerequisite for the orders. The purpose is well explained in The Halsbury’s Law s of England, 14th Edition, paragraph 568. There it is said:- “Leave of the court is a necessary pre-condition to the m aking of an application for judicial review , and no application for judicial

review m ay be m ade unless this leave has first been duly obtained” In our view, it is m isleading to consider, as Mr Boniface argued, the application for leave to apply for the orders as a separate and distinct process from the application for 14 Judicial R eview . It is a necessary step to an application for the order…”( Emphasis added) This position was also taken by the same Court in Emma Bayo v. The Minister for Labour and Youth Development and two others, (Supra)where quoting with approval the above decision, it was held : “Although both Mr. Materu and Mr. Chavula have placed reliance on the decision of the Court of Appeal of Kenya, NJUGUNA V M I NI STER FOR AGRI CULTURE (supra); it is now an established part of the procedural law of Tanzania that a person applying for prerogative orders in the High Court must first apply for leave, which if granted will be followed by a subsequent main application for the prerogative orders. …an application for leave to apply for the prerogative orders is sim ply a prerequisite to an application for these orders .” ( emphasis added) I have carefully read sections 2(5) and 4 (1) of the Public Procurement Act (PPA) along with the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap 310, and its rules. I don’t see any conflict between the cited laws. Section 2(5) of the PPA reads: 15 “2(5) Subject to section 4(1), the extent

to which this Act, regulations and rules made under it conflict with other laws, regulations or rules on matters relating to public procurem ent and disposal of public assets by tender, the provisions of this Act, regulations and rules made under it shall prevail.”( emphasis added) And section 4 (1) of the Public Procurement Act states:- "1) To the extent that this Act conflicts with an obligation of the United Republic under or arising out of- (a) any treaty or other form of agreement to which the Government is a party with one or more other states or political sub-divisions of such states; or (b) any grant agreement entered into by the Government with an inter-governmental or international financing institution in which the Government is the beneficiary, the requirement of such treaty or agreement shall prevail, but in all other respects, the procurem ent shall be governed by this Act. "( emphasis added) 16 The provisions above establish a clear hierarchy between the Public Procurement Act and other laws governing public procurement and asset disposal. Specifically, while the Act and its accompanying regulations prevail over conflicting laws, this supremacy is subject to the United Republic's existing obligations under international treaties or agreements. In situations where conflicts arise between the Act and these international obligations, the latter will take precedence.

This means the Act serves as the primary legal framework for procurement processes unless a specific international commitment dictates otherwise. The keyword used in the above provisions is procurem ent . The terms procurem ent, procurem ent proceedings and procurem ent process are defined under section 2 of the same act as follows: “P rocurem ent” means buying, purchasing, renting, leasing or otherwise acquiring any goods, works or services by a procuring entity and includes all functions that pertain to the obtaining of any goods, works or services, including a description of requirements, selection and invitation of tenderers, preparation, award and management of contracts; “ 17 “procurem ent proceedings” means the proceedings to be followed by a procuring entity or any approving authority when engaging in procurem ent; And “procurem ent process” means the successive stages in the procurement cycle, including planning, choice of procedures, measures to solicit offers from tenderers, examination and evaluation of those offers, award of contract and contract management.” Therefore, it is obvious that the two sections cited govern the public procurement processes and not the appeal processes based on the decisions resulting from them. Mr Vedasto's contention that the requirement for leave to apply for judicial review hinders a party's ability to challenge a decision effectively

reflects a fundamental misunderstanding of the legal framework established by the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act and the rules. The leave requirement is crucial in the judicial process as a gatekeeping mechanism. It is designed to filter out frivolous or unmeritorious claims, thereby conserving the courts' limited resources and 18 allowing them to concentrate on cases that genuinely warrant judicial intervention. I have enthusiastically approached the decision of the Full Bench of the Court of Appeal in Tanzania Teachers Union v. The Chief Secretary and Others (Supra), immersing myself in its nuances and implications. It is imperative to acknowledge that while the issues presented in this case may initially appear to parallel those currently under consideration, a closer examination reveals significant differences in the factual contexts of the two cases. In that case, section 57 provided a right of appeal without specifying the leave requirement, while Section 5 (1(c ) of AJA had a leave requirement. The Court was then called upon to determine whether appeals under section 57 of the Labour Institution Act require leave of the Court to Appeal to the Court of Appeal under section 5 (1( c) of the Appellate Jurisdiction Act( Cap 141 R.E 2002). After a long dialogue by the parties, amicus curiae, and a long deliberation by the Full Bench at page 27 it

was held: … it seems to us that the opening statement in section 5 (1) of the AJA that- ex cept w here any other w ritten law s for the tim e being in force provides otherw ise, an appeal shall lie to the Court of Appeal “ does not im ply 19 that the AJA is superior to or controlling over other provisions of the w ritten law s like- section 14(1) of the Basic Rights and Duties Enforcement Act, or section 5 of the AJA, or section 47 and 48 of the Land disputes Court Act, or section 25 of the Tax Revenues Appeals Act, or section 17 (5) of the law Reforms (Fatal Accidents and Miscellaneous Provisions ) Act, or section 57 of LIA which on their own respective scopes, also provide for the right of appeal to the Court of Appeal”( bold is mine) The situation here is different. Neither section 17 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act nor the 2014 rules contain wording similar to that of section 5 (1) (c ) of the AJA discussed in the above case. In addition to that, unlike in our case, section 57 of LIA considered by the Court of Appeal, had a definite procedure under Rule 55 (1) of the Labour Court Rules ( GN No 106 of 2007) on how one would approach the Court of Appeal, which had directly adopted the Court Of Appeal Rules, 2009 to govern Appeals from the decision of the Labour Court rendering section 57 of LIA very independent and adequate for

that purpose. The rule read: 20 “Subject to the provisions of section 57 of the Act, any appeal to the Court of Appeal of Tanzania shall be in conformity or as nearly as possible with the provisions of the Court of Appeal of Tanzania Rules, 1979” Luckily, in his submissions, Mr Vedasto acknowledges the necessity of obtaining leave in judicial review, suggesting that this requirement should only apply where no specific statutory framework exists. However, he has failed to identify any alternative procedure under the Public Procurement Act for judicial review, revealing a gap in the law that makes the Law Reform Act and its rules a crucial framework for aggrieved parties seeking remedies for prerogative orders. In essence, this omission suggests a concession on his part that all judicial review proceedings, including the matter at hand, are primarily governed by the procedures outlined in the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014. This also tells why the 2nd respondent did not object to an application for leave that was decided in favour of the applicant. Considering the context and nature of the procedures involved in this matter, it becomes clear that the applicant, in this case, was bound to take decisive action to invoke the judicial review avenues within 14 days 21 from the decision date. To navigate this

process effectively, the applicant is mandatorily bound to refer back to the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014, serving as the comprehensive framework governing the entire judicial review process, outlining the necessary steps, requirements, and procedures to be followed leave being one of them. In this case, the impugned decision was delivered on 11/8/2023. The application for leave was immediately filed and admitted by this court on 23/8/2023, within the 14 days stipulated under the Public Procurement Act, which is within the six months provided for by the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, particularly Rule 6. The preliminary objection is thus overruled. Now, back to the main application. The applicant's counsel commenced his submissions by citing the case of Sanai Murumbe & Another Vs Muhere Chacha [1990] TLR 54 and M/S Olam (T) Limited Vs Leonard Magesa & 2 Others, Misc Civil Cause No. 6 of 2019 (Unreported) asserting that for the court to grant an order for certiorari against the 1st Respondent's decision, it must demonstrate that the decision was made arbitrarily; violated the principles of natural justice and 22 that the decision was irrational. He contended that the Public Procurement Appeals Authority acted Ultra vires the

Procurement Contract for tender No. PA/044/2022- 2023/HQ/G/25 for the Supply of Fuel Markers (under Framework Agreement), Plastic cylinders, Metal Jerricans, Fuel Dosing System and Fuel Marker Detection System for the Tanzania Bureau of Standards had already signed a contract between the Applicant and the 3rd Respondent which was executed since 08th July 2023. And that it was improper for the Public Procurement Appeals Authority to entertain the Appeal filed to it by the 2nd Respondent beyond the seven days stipulated time contrary to sections 95 and 96 of the Public Procurement Act Cap.

410. He maintained that the Accounting Officer had earlier determined the complaint and issued its decision thereof on 23rd June 2023, notifying the complainant that the request for administrative review was received beyond the acceptable time limit contrary to Instruction to Tenderers (ITT) Clause No. 46.1 and Section 60(3) of the Public Procurement Act which require tenderers to submit the complaints within seven working days from the date of the receipt of notice of intention to award the contract. And the Procurement Contract for Tender No. PA/044/2022- 2023/HQ/G/25 was signed on 26th June 2023. Therefore, the PPAA was 23 precluded from entertaining the Appeal because it lacks a decision capable of being appealed for as the complaint for administrative review was filed out of time. In asserting that the decision rendered by the PPAA violated the principles of natural justice. The Applicant contended that the Authority, particularly at pages 47 and 48 of its decision, introduced a new ground of appeal, that the 3rd Respondent had awarded the tender prior to the expiration of the cooling-off period without affording parties a right to be heard on the point. While conceding that Rule 13(5) permits the 1st respondent to consider issues or grounds not articulated in the Statement of Appeal, provided they arise from the Respondent’s reply, he said this procedural allowance does

not absolve the Authority from the obligation to afford the parties an opportunity to be heard on such new matters insisting that any new issue arising during the proceedings necessitates due consideration and an opportunity for both parties to present their arguments. The court's attention was drawn to the decision of Director of Public Prosecutions Vs France Dominicus Chiwangu @SHARO, Criminal Appeal No. 526 of 2021, and Hussein Mapunda Vs Alfred Mwandali, Civil Appeal No. 393 of 2021 (All unreported), and Mbeya Rukwa Vs Jestina (2003) TLR 251, that a person whose rights are being 24 determined has the right, not only to be heard but to be heard fully. In addressing grounds (b)(i) and (ii) on the assertion that the 1st Respondent erred by entertaining a Procurement Appeal that was filed out of time, the Applicant's counsel argued with reference to sections 95 and 96 of the Public Procurement Act, stating that these provisions mandate a dissatisfied tenderer to submit an application for administrative review to the Accounting Officer of the relevant procuring entity within seven working days. The notice of intention to award was disseminated on 7th June 2023 via TANePS. All tenderers received the said notice on the same day. However, the 5th Respondent requested to be availed with more information. For convenience, the 3rd Respondent sent an email on 09th June 2023 to all

tenderers to clarify that the notice of intention to award the Tender to the Applicant was already issued on 07th June 2023. Accordingly, the period for applying for administrative review commenced on 8th June 2023, with a deadline of 17th June 2023 but the 2nd Respondent did not submit her application until 20th June 2023, contrary to the statutory time limits. He refereed the Court to sections 60(3), 96(4), and 96(5) of the Public Procurement Act, contending that the application for administrative review filed by the 2nd Respondent was out of time, and thus, the 1st Respondent's decision on this matter lacked a proper 25 legal foundation. The applicant's counsel also went further to fault the Public Procurement Appeals Authority (1st Respondent) for making an error in questioning the service of the administrative decision to the 2nd Respondent based on its U.S. address pointing out that assuming the decision could not reach the 2nd Respondent within seven working days was incorrect. He noted that the Accounting Officer's decision was issued promptly on June 23, 2023, while the 2nd Respondent submitted its appeal on July 10, 2023, beyond the statutory time limit of eight working days. He was emphatic that section 96(6) of the PPA does not require the accounting officer to ensure that tenderers receive the decision or to confirm delivery to their addresses but to issue the

decision within 7 days of receiving the complaint. Lastly, he said, the 1st Respondent's decision is embarrassing, that it is unlawful, illogical, and irrational in that the 1st Respondent reached a wrong decision that the Applicant did not disclose litigation history (final judgment) and information. He submitted that according to the Tender Document -Eligibility and Qualification Criteria -Litigation History, the Tenderers were required to show or submit a consistent history of Court or Arbitral award decisions against the tenderer from 1st January 2018. 26 The Applicant complied with this requirement and disclosed all the material, required information and facts and that the matters complained of against the Applicant’s former employee arose between 2008 and 2015, far beyond the requirements of the Tender; hence, irrelevant to the tender at issue. The counsel highlighted a general compliance investigation conducted by the Swiss Office of the Attorney General (OAG) between 2008 and 2015, which involved the applicant’s former employee stating that the OAG clarified that its findings did not indicate any admission of guilt by the Applicant, nor were there any judgments or court proceedings against it. In this context, the counsel argued that it was unreasonable for the 1st respondent to attribute vicarious liability to the Applicant for the actions of its employees without

establishing the necessary conditions for such liability. He banked on the case of Rev. Christopher Mtikila vs. The Editor, Business Times & Augustine Lyatonga Mrema [1993] TLR 60 (HC) to support his assertion that vicarious liability does not equal the direct liability of an employee being transferred to the employer. He lastly urged the court to issue an order of Certiorari to quash the decision made by the Public Procurement Appeals Authority on 11th August 2023, with costs. 27 In response to the applicant's submissions, the learned State Attorneys for the 1st, 3rd, and 4th Respondents argued that the Notice of Intention to Award the Tender was adequately issued to the tenderers on June 9, 2023. Therefore the tenderers had the right to apply for an administrative review to the 3rd Respondent within seven working days, which meant by June 20, 2023, under section 96(4) of the PPA, Since this was correctly done, the 3rd Respondent was required to issue its decision within seven working days, as stipulated in Section 96(6) of the Act. Counting from June 20, 2023, the deadline for the 3rd Respondent to issue its decision was June 30, 2023, because June 29, 2023, was a public holiday. They further explained that the 2nd Respondent was entitled to appeal to the 1st Respondent within seven working days from 30th June 2023, per Section 97(2)(a) of the Public Procurement Act, since

the 3rd Respondent did not issue its decision in the required timeframe. The appeal filed by the 2nd Respondent on 10th July 2023 was well within the deadline, rendering the Applicant’s arguments regarding its timeliness meritless. In assessing whether the 1st Respondent's decision is ultra vires and breaches natural justice principles, attorneys for the 1st, 3rd, and 4th Respondents argued that the Applicant's claims lacked sufficient support. They noted that in paragraph 21(a)(ii) of the Statement, the Applicant 28 claimed the decision violated the Public Procurement Act but did not provide adequate details. They viewed this as an unsupported claim not supported by the original Application, deeming it inappropriate to raise at this stage. Support for their position was drawn from court’s decisions in Said Sultan Ngalema v. Isack Boaz Ng’iwanishi and 4 others, Civil Application No. 362/17 of 2021 CAT, and Lupiana Michael Lupiana v. Mkombozi Commercial Bank and two others, Civil Appeal No. 207 of 2023 ( both unreported), both emphasizing the necessity for parties to adhere to their pleadings and the court's reluctance to address unpresented issues. Furthermore, they noted that the matter of natural justice was not considered by the Court when permission was granted to file the Application, thereby making it ineligible for review without necessary amendments. In an alternative

argument, the State Attorneys argued that the claim against the 1st Respondent's decision being ultra vires and violating natural justice lacks merit. They pointed out that all parties were given a chance to be heard, specifically noting that the 2nd Respondent addressed the legality of the tender award to the Applicant in the appeal as reflected in page 24 of the 1st Respondent’s decision where 3rd Respondent was censured for violating section 60 (3) of the Public Procurement Act by 29 awarding the tender before the end of the cool-off period, and since the Applicant did not respond to this argument during the appeal, she cannot rightfully claim a denial of her right to be heard. They stated that Rule 13(5) of the Public Procurement Appeal Rules of 2014, amended in 2017, permits the Appellant to raise new issues from the Respondent’s Reply. Unlike the cited cases, which involved issues raised by the court suo moto where parties were not heard and lacked supporting rules, the Appellant initiated the current point, arguing that the first Respondent appropriately considered the timing of the tender award complaint. On whether the 1st Respondent's assumption that the 2nd Respondent’s address in the United States affected the timely delivery of the accounting officer’s decision, the State attorneys said that the 3rd Respondent did not provide evidence proving service of the

decision to the 2nd Respondent via ordinary mail. Section 97(2)(b) mandates the accounting officer to communicate the decision through service. Once the deadline for the accounting officer's decision elapsed, the 2nd Respondent, formerly the Appellant, retained the right to appeal within seven working days per section 97(2)(a) of the Public Procurement Act. Therefore, the 3rd Respondent's failure to serve the decision allowed the 2nd Respondent 30 to appeal to the 1st Respondent. In response to the applicant's litigation history, the learned State Attorney argued that the applicant failed to disclose a summary penalty order against them issued by the Attorney General of Switzerland on April 27, 2023, which became a final judgment due to the applicant's inaction. According to the qualification criteria, any litigation history since January 1, 2018, was required to be disclosed, and the applicant was aware of this judgment before the tender deadline of May 25, 2023. The respondents noted that the conviction applied to SICPA SA, not an employee, and stressed that the applicant's nondisclosure was a breach of obligations. They urged the court to dismiss this claim and the entire application with costs. The 2nd respondent's counsel argued that judicial review proceedings differ from appeals in that they are limited to specific grounds and do not allow for the questioning of every

perceived error in the impugned decision. He cited the Court of Appeal's ruling in Sanai Murumbe & Another v. Muhere Chacha [1990] TLR 54 to illustrate this point. To him, the current application reveals only one ground related to jurisdiction, "lack or ex cess of jurisdiction." He explained that the arguments made in the 1st and 3rd grounds, asserting that the decision 31 in question was ultra vires or time-barred, can be examined within the context of a contemporary understanding of time limits as a jurisdictional issue. However, he contended that the 3rd ground, which claims that the conclusion regarding the failure to disclose a litigation history, was incorrect and does not constitute a valid ground for judicial review. He urged the Court to disregard it entirely. Arguing the 1st and 2nd grounds that the decision is ultra vires and time- barred, the 2nd respondent’s counsel said that while ultra vires is a fit ground for judicial review as stated in the Sinai case , nothing ultra vires is pointed out throughout the submissions of the Applicant thereon. He maintained that the term ultra vires is defined in Concise Law Dictionary, 2nd Edition, Wadhwa and Company Law Publishers, Agra Nagpur, New Delhi, India, to mean; “Beyond one’s powers. ...that something has been done by a person or body of persons which was beyond his or their power.” He was of the view that the applicant

was expected to demonstrate where the 1st Respondent’s decision exceeded its authorized mandate. Still, no such evidence was presented except for the timeliness of the appeal before the 1st Respondent, which might be interpreted as an ultra vires argument coming into scenarios whether the 2nd Respondent’s complaint 32 to the 3rd Respondent was time-barred and whether the 2nd Respondent’s appeal to the 1st Respondent was filed outside the allowed timeframe. Arguing on whether the complaint by the 2nd respondent was time- barred, the 2nd respondent's counsel argued that the arguments that the notice to award was issued on 07th June 2023 through TANePS, where all tenderers received the same is misconceived and unmaintainable for failure to show the error in the 1st Respondent’s decision. He said the 1st respondent accepted it as a fact that had the 3rd Respondent sent the Notice of Intention to award the tender on 7th June 2023 as alleged, it would not have been resent the same through email of 9th June 2023. He believed it would have sufficed for the 1st Respondent to rule that there was no service of the notification on the 2nd Respondent on 7.6.2023. However, the 1st Respondent went the extra mile to find a way to accommodate the 3rd Respondent’s contention by undertaking a task of reviewing the audit trail on TANePS, at the end of which it found no evidence that the alleged

notification was ever communicated to the 2nd Respondent. On this account, the 1st Respondent decided the issue in favour of the 2nd Respondent. He condemned the Applicant for failing to point out any error in the impugned decision. 33 Submitting on the timelines of the 2nd respondent's appeal to the 1st respondent The counsel for the 2nd Respondent argued that the Applicant's assertion that the appeal was late is a misunderstanding of the Public Procurement Act, which allows for two avenues to challenge a procuring entity, appealing within seven working days from the date the accounting officer communicates their decision or after the expiration of the period within which that decision should have been made. To him, the Applicant’s arguments were misplaced, as the appeal's timing aligns with the provisions of the Act. He maintained that the 2nd Respondent’s Appeal before the 1st Respondent was that no decision of the accounting officer (the 3rd Respondent) was ever communicated to it before she filed the appeal on 10.7.2024. The 2nd Respondent stated that she saw the decision first at the appeal hearing on 7.8.2023. The 3rd Respondent failed to show to the satisfaction of the 1st Respondent that she ever served the decision on the 2nd Respondent by any means, even by mail (postal service), which she flatly alleged with no document in support. He referred the court to page 18

of the 1st respondent’s decision. He said, counting from 20th June, 2023, when the application for administrative review was submitted by the 2nd Respondent to the 3rd cn Respondent, seven working days from when the 3rd Respondent was to 34 make her decision expired on 30.6.2023. The interval counted from that day, which involved the Saturday of 1.7.2023, Sunday of 2.7.2023, Sabasaba of 7.7.2023, Saturday of 8.7.2023 and Sunday of 9.7.2023, had seven working days expiring on 12.7.2023. Therefore, the appeal filed on 10.7.2023 was well within time, as held by the 1st respondent on page 19 of her decision. Regarding the point that the decision is wrong and embarrassing for holding that the applicant did not disclose litigation history, he said this is not a judicial review ground at all as it challenges the merit of the decision and, therefore, deserves no consideration. Alternatively, he said, One , the Applicant has changed the ground, stating that the decision is unlawful, illogical and irrational contrary to the earlier grounds highlighted in his pleading, defeating the law that pleadings bind parties. Secondly , the applicant's assertion that the litigation history required did not cover the history of the wrongs committed between 2008 and 2015, which period was irrelevant, is baseless. The 2nd respondents counsel clarified that neither before the PPAA in appeal nor at this

time the Applicant denies the conviction made by the office of the Attorney General of Switzerland by a summary penalty order issued on 27.4.2023. On the contention that the offence was committed 35 not by the company, the applicant but by her former employee; hence, the Applicant was wrongly held liable is a new argument not borne by the records. The letter issued by the Swiss AG on 27th April 2023, attached to the Appeal, on which the 1st Respondent’s decision is based, and whose copy is attached to the 2nd Respondent’s counter affidavit as Annexure AA4 talks of a criminal order being issued to the applicant, and not to his employee. So, the document in the record does not support the Applicant’s contention exonerating her from the conviction at issue. Regarding the litigation time and whether it was relevant to the tender at issue or not, the 2nd respondent was of the view that the tender document required the tenderer to disclose the date of the decision or award and not the cause of action and since the decision at issue was rendered on 27.4.2023, the decision was relevant to the tender, and more so that the applicant's assertion on this points contradicts the information disclosed in the tender document by the applicant. He noted that the 1st Respondent held the Applicant ineligible for tendering by virtue of Clause 3.8 (d) of the ITT, which disqualifies a tenderer who is

convicted of an offence from participating in the tender the conclusion that was never challenged. He was emphatic that the applicant would still have a duty to disclose this fact even if there were 36 no specific rules imposing such a requirement as it is a material fact that the tender's nature required every applicant to disclose. He lastly prayed for the dismissal of the application with costs. The 5th Respondent did not challenge the application's merits and left it to the Court to decide whether the Applicant had provided sufficient grounds to grant the requested orders. She noted that, as a respondent in Appeal No. 03 of 2023-24, she did not enter an appearance or defend the Appeal, and the decision did not affect her. Consequently, she requested that the Court not impose costs on her if the application is granted. Ultimately, she urged the Court to assess the application's merits based on the evidence presented by the Applicant to determine if it meets the required threshold for such applications. In rejoinder to the 1st, 3rd and 4th Respondents' reply submission, the applicant's advocate invited the Court to review Annexure SSA-7, where the 1st, 3rd and 4th Respondents opposed the Administrative Review of the 2nd Respondent and submitted a reply on July 18, 2023, where they raised a Preliminary Objection attacking the 2nd respondents’ appeal for being vexatious,

frivolous, and legally untenable due to the absence of a decision by the Procuring Entity that could be appealed, as the appellant, Authentic Inc., failed to exhaust available remedies and lodged a 37 complaint out of time, violating Sections 96(1) and 60 of the Public Procurement Act, 2011 and that the appeal was filed out of time, contrary to Sections 96(6)(7) and 97 of the same Act. The applicant's advocate accused the Respondents of hypocrisy and manipulation of the judicial system by changing their positions and denying their own prior allegations. He insisted that the procurement process was lawfully adhered to and, indeed, timeously complied with before the 3rd Respondent proceeded to award the Procurement contract to the Applicant, which was signed on 26th June 2023 pursuant to Regulation 59 of the Public Procurement (amendment) Regulations, 2016 (Government Notice No. 121 of 2016). And that the issue of ultra vires was pleaded on page 19 of the applicant's statement and paragraphs 18 and 13 of the Applicant’s Statement, together with its accompanying annexures, and, therefore, a valid ground for the judicial review. The rest of his rejoinder submissions are a reiteration of his submissions in chief. Having considered the contested decision and objectively analysed the parties' submissions, I can now assess the three grounds in the applicant's pleadings. I will begin

with ground (b), where the 1st respondent (PPAA) is censured for determining an appeal from the 2nd respondent that was 38 filed beyond time. Two issues are disenabled from the applicant's submissions (i) the timeliness of the 2nd Respondent’s complaint to the 3rd Respondent in response to the notification to award the tender issued under section 60 (3) of the PPA, and (ii)whether the 2nd Respondent’s appeal to the 1st Respondent was filed within the allowed timeframe. As indicated in the introductory part of this decision, the 3rd Respondent, a public institution responsible for quality control, issued a tender for the supply of fuel markers, attracting bids from the Applicant, the 2nd Respondent, and the 5th Respondent's private entities eager to participate in the project. The tender evaluation process proceeded smoothly, and the results were finalised by June 7, 2023. The 3rd Respondent was, at this stage, required by the law to notify the tenderers of its intention to award the tender, granting all bidders a seven-working-day period to submit any complaints regarding the intended award. The 1st point highlighted above hinges on the service timing of the notifications to the second Respondent A clear understanding of the legal position at this stage is vital to resolving the issue. Section 60 is so exhaustive. It reads: 60.-(1) Subject to the provisions of section 59, the

tender or proposal that has been ascertained to be the successful tender or proposal pursuant to the provision of this Act shall be 39 accepted. (2) The accounting officer shall be notified by the tender board of its award decision within three working days of making the decision. (3) Upon receipt of notification, the accounting officer shall, im m ediately thereafter, issue a notice of intention to aw ard the contract to all tenderers w ho participated in the tender in question giving them seven w orking days w ithin w hich to subm it com plaints thereof, if any. (4) Subject to subsection (3), the accounting officer of a local government authority shall, before issuing a notice of intention to award a contract, submit the award decision to the Committee responsible for finance and planning, for scrutiny, and where the Committee is dissatisfied with the decision of the tender board, it shall request the Authority to conduct an investigation pursuant to section 33(3). (5) W here no com plaints have been lodged pursuant to subsection (3), the accounting officer shall issue a 40 notice of acceptance to the successful tenderer. (6) The notifications referred to in subsection (3) shall be communicated in a written or electronic form as prescribed in the tender document and be signed by accounting officer. (7) Where a tender, offer or proposal has been accepted by the accounting

officer, the procuring entity and the person whose tender, offer or proposal has been accepted shall enter into a formal contract for the supply of goods, provision of services or undertaking of works. (8) A formal contract shall be in such form and contain such terms, conditions and provisions as contained in the tender document. (9) Any formal contract above the thresholds specified in the regulations arising out of the acceptance of a tender, offer or proposal under this Act shall be vetted by the Attorney General before being signed by the parties. (10) Contracts below specified thresholds in the regulations shall be vetted by legal officers employed by respective procuring entities. 41 (11) A procurement contract shall enter into force when the formal contract is signed by the parties to the contract. (12) The accounting officer shall, within thirty days from the date of award, notify the Authority, the name of the person or body to whom the contract is awarded, the amount of tender or proposal and the date on which the award was made”. (Emphasis added) The above provision, read together with Regulation 231 of the Procurement Regulations as amended , provides explicitly that once a tender or proposal has been successful, it is to be accepted by the accounting officer, who must be notified of the award decision by the tender board within three working days. Upon receiving

this notification, the accounting officer is required, by subsection 3 of section 60, to issue a notice of intention to award the contract to all participating tenderers, providing them seven working days to submit any complaints. Notifications must be communicated in writing or electronically, as per the tender document and must be signed by the accounting officer. If no complaints are made within the specified timeframe, the accounting officer will notify the successful tenderer of acceptance. Following acceptance, a formal contract must be executed between the procuring 42 entity and the accepted tenderer, containing the terms specified in the tender document. And the procurement contract is deemed effective when both parties sign it. Upon a thorough examination of the records, it is clear that the parties involved hold conflicting positions regarding the timing and method of service for the Notice of Intention to Award the Tender. The applicant maintains that the notice was duly served via TANePS on 7 June 2023, indicating the intention to award the tender to the Applicant, as per section 60(3) of the Public Procurement Act. In contrast, the 1st,2nd 3rd and 4th Respondents firmly assert that though the notice was issued on 7th June 2023, it was served upon the tenderer on 9th June 2023 through email. I have given the party's argument the serious evaluation it

deserves. Under section 60 (3) of the Public Procurement Act, the third respondent was obligated to provide notice to the tenderers regarding the outcome of the tender. Regulation 231 (4) of the Public Procurement regulations as amended describes the contents of the notification, which includes the nam e of the successful tenderer, the contract sum , the com pletion or delivery period, and reasons as to w hy the tenderers w ere not successful. The notice was to be served to 43 recipients to ensure they take necessary action within the established timelines; otherwise, the entire process could be compromised, undermining the rights of the tenderers. In this case, apart from sending the notification through TANePs, the 3rd respondent specifically acknowledged its deficiency via the resent notification sent on 9th June 2023. I had the advantage of reading the undisputed notice, it reads: “Please be informed that the notification of intention to award tender No. PA/044/2022-2023/HQ/G/25 for the Supply of Fuel Marker (under Framework Agreement), Plastic cylinders, Metal Jerricans, Fuel Dosing System and Fuel Marker Detection System was posted through TANePs on 7/06/2023 However, it has com e to our attention that som e bidder(s) received notification only through TANeP s w ithout being accom panied w ith attached letters. That being the case, find the attached letter

being notification of intention to aw ard the above tender.” In the above notification, though, the 3rd respondent admits to having sent the earlier notification on 7th June 2023; she concedes that som e 44 bidders (not disclosed) received notification only through TANePs without being accompanied by the attached letter. More importantly, the last sentence confirms that the said letter was resent as a notification of intention to award the tender, meaning that the required contents of the notification were contained in the letter, which was missing in the first notification sent via TANePs. This tells why even the review of the TANePs system done by the PPAA found the notification without the recipient and the required contents, as reflected on page 19 of its decision, that:- “It is evident that on 7th June 2023 the Tender evaluation results were sent via TANePS and that the system does not indicate w ho w ere the recipients and w hat w ere the contents of the sent inform ation. In view of the above observations, the Appeals Authority is unable to ascertain the service of the 1st Respondent's Notice of Intention to award on 7"' June 2023 through TANePS. In the absence of sufficient proof that the Tender evaluation results sent on 7th June 2023 via TANePS was the Notice of Intention to award and that the same was sent to all tenderers, the Appeals Authority concludes that the

proper sendee of the Notice of Intention to award was done on 9th June 2023.( bold is mine) 45 Had it been true that the 2nd respondent was one of the bidders who had received the complete communication, that is, the letter dated 7th June 2023, the resent notification would have been so articulated, and it would not have been resent to all tenderers on June 9, 2023, explicitly citing the emailed notification as a formal notification of the intention for the tender award as indicated on the last paragraph of the said letter quoted above reading: ”That being the case, find the attached letter being notification of intention to aw ard the above tender.” It should be noted here that the words used in Regulation 231 (4) “shall” imply the mandatory nature of the details of the notification. The regulations read: 231.-(1) Tender board shall, in accordance with section 75 of the Act, approve the recommendations of the evaluation team and inform the accounting officer of its award decision within three working days of making the decision. (2) Upon receipt of the notification of award decision from the tender board, the accounting officer shall, having satisfied him self that proper procedures have been follow ed and w ithin three days, issue a notice of intention to aw ard the contract to all tenderers w ho 46 participated in the tender in question giving them seven days w ithin w hich

to subm it a com plaint, if any. (3) N/A (4) The notice referred to in sub-regulation (2) shall contain- (a) nam e of the successful tenderer. (b) the contract sum and com pletion or delivery period; (c) reasons as to w hy the tenderers w ere not successful.” ( emphasis added) As clarified above, although the notification was issued on June 7, 2023, it did not reach the tenderer/ recipients, including the second respondent, until June 9, 2023, via a recent email. The second respondent confirmed this, stating that he received the Notice of Intention to Award the Tender, dated June 7, 2023, on June 10, 2023, through an email sent by the third respondent on June 9, 2023. Since no additional evidence was presented to either the PPAA or this court to demonstrate that the Notice dated June 7, 2023, was served before June 9, 2023, it is clear that the tender notification was effectively issued on June 9, 2023, and not earlier, as had been previously claimed. 47 Next is whether the 2nd respondent's complaint to the 3rd respondent was issued on time. According to Section 95, anyone who is aggrieved by the tendering process has the right to seek a review of the administrative decision, as outlined in sections 96 and 97 of the Act. Section 96 states that.: 95.-(1) Any tenderer w ho claim s to have suffered or that m ay suffer any loss or injury as a result of a breach of a duty im posed

on a procuring entity by this Act m ay seek review in accordance w ith sections 96 and 97. 96.-(1) Any complaints or dispute between procuring entities and tenderers which arise in respect of procurement proceedings, disposal of public assets by tender and awards of contracts shall be reviewed and decided upon a w ritten decision of the accounting officer of a procuring entity and give reasons for his decision. (2) On receiving a complaint under this section the accounting officer may, depending on the nature of the complaint, constitute an independent review panel from within or outside his organisation which shall review the complaint and advise 48 him on the appropriate actions to be taken. (3) Where after proper investigation, it is established that, the chairman of the tender board, any member of the tender board, the secretary of the tender board or any other public officer of the procuring entity has violated this Act or the regulations made under it, the accounting officer shall take appropriate actions against him. (4) The accounting officer shall not entertain a complaint or dispute unless it is submitted w ithin seven w orking days from the date the tenderer subm itting it becam e aw are of the circum stances giving rise to the com plaint or dispute or when that tenderer should have becom e aw are of those circum stances, w hichever is earlier. (5) The accounting

officer shall not entertain a com plaint or dispute or continue to entertain a com plaint or dispute after the procurem ent contract has entered into force. (6) The accounting officer shall, w ithin seven w orking 49 days after the subm ission of the com plaint or dispute, deliver a w ritten decision which shall- (a) state the reasons for the decision; or (b) where the complaint or dispute is upheld in whole or in part indicate the corrective measures to be taken. (7) Where the accounting officer does not issue a decision within the time specified in subsection (6), the tenderer submitting the complaint or dispute to the procuring entity shall be entitled immediately thereafter to institute proceedings under section 97 and upon institution of such proceedings, the competence of the accounting officer to entertain the complaint or dispute shall cease. (8) The decision of the accounting officer shall be final unless the tenderer applies for administrative review to the Appeals Authority. Section 96 (4) requires the accounting officer to consider complaints submitted within seven working days from the date the tenderer became aware of the circumstances related to the complaint or dispute or from when the tenderer reasonably should have become aware of those 50 circumstances, whichever is earlier. ate I have revisited the 2023 calendar, and counting from June 9, 2023, the seven

working days period to apply for an administrative review, as outlined in section 96(4) of the Act, extends to June 20, 2023. This is also the date on which the application for administrative review was filed, confirming that it was submitted well within the designated time frame. The second limb of the applicant's submission on his 2nd ground faults PPAA’s mandate to adjudicate upon a time-barred appeal. Generally, Section 97 (2) and (3) provide three avenues for appeal to the PPAA. One, when the accounting officer’s decision is communicated to the complainant; tw o, upon expiry of the period within which the accounting officer ought to have made a decision, where such a decision is not issued and three, where the complaint or dispute cannot be entertained under section 96 because of entry into force of the procurement or disposal contract. In this scenario, the complainant can appeal directly to the PPAA. In any of the above circumstances, an appeal to the PPAA must be filed within seven working days of the complainant’s knowledge of the abovementioned situations. Category three does not apply in the circumstances of this case, as this matter was entertained under section 96. Section 97 is drafted thus: 51 97.-(1) A tenderer who is aggrieved by the decision of the accounting officer may refer the matter to the Appeals Authority for review and administrative decision. (2)

Where- (a) the accounting officer does not m ake a decision w ithin the period specified under this Act; or (b) the tenderer is not satisfied w ith the decision of the accounting officer, the tenderer may make a complaint to the Appeals Authority w ithin seven w orking days from the date of com m unication of the decision by the accounting officer or upon the ex piry of the period w ithin w hich the accounting officer ought to have m ade a decision. (3) A tenderer may submit a complaint or dispute directly to the Appeals Authority if the com plaint or dispute cannot be entertained under section 96 because of entry into force of the procurem ent or disposal contract, and provided that the complaint or dispute is submitted within seven working days from the date when the 52 tenderer submitting it became aware of the circumstances giving rise to the complaint or dispute or the time when that tenderer should have become aware of those circumstances.” ( emphasis added) It is important to highlight that the timeline surrounding the decision issuance by the 3rd Respondent is crucial for understanding the validity of the Appeal submitted by the 2nd Respondent. Section 96 (6) of the PPA requires the accounting officer to decide within seven working days after the complaint is submitted to it. So, since the application for administrative review was filed on June 20, 2023, the deadline

for the 3rd Respondent to issue its decision was June 30, 2023, since the 24th and 25th June 2023 were not weekdays and June 29th was a public holiday. The timeliness of the decision is a matter of contention in this case. At the appeal hearing, the third respondent asserted that it issued a decision on July 23, 2023, which was purportedly served to the second respondent via normal mail. In contrast, the second respondent maintains they were never served with any decision. Having evaluated the point, the 1st Respondent concluded that the 3rd Respondent had failed to issue its decision within the seven working days as required by the law, and therefore the 2nd Respondent had a right to file an Appeal to the 1st 53 Respondent within seven working days from 30th June 2023 under Section 97 (2) (a) of the Public Procurement Act . I share the same position regarding this matter. Upon thorough review of the records and all the accompanying documents in the party affidavit and statements, I find no evidence indicating that the alleged decision was ever served to the 2nd respondent. The absence of such proof leads to an inevitable conclusion that the 2nd respondent was, in fact, never served with the counting officers' decision. Thus, the only recourse available to her was to file an appeal with the 1st respondent within seven working days of the designated timeframe for the accounting

officer to decide, as stipulated under section 97(2) of the Public Procurement Act (PPA). The applicant's counsel argues that Section 96(6) of the Public Procurement Act does not require the accounting officer to confirm that tenderers received the decision or to ensure delivery to their addresses but rather mandates that the decision be issued within seven days of receiving any complaints. I have taken the above sentiments seriously. However, the evaluation of the record has failed to find justification for the applicant's argument. Both sections 96 (6) and 97(3) require complaints to be submitted only when the tenderer “becam e aw are of the circum stances giving rise to 54 the com plaint or dispute or when that tenderer should have becom e aw are of those circum stances, w hichever is earlier.” This phrase suggests the gaining of knowledge or being informed. Otherwise, there would be no meaning in setting the timelines for appealing processes. As stated earlier, the 3rd Respondent was required to issue a decision by June 30, 2023. This timeline was crucial for the 2nd Respondent to file an appeal by July 12, 2023. Since the 2nd Respondent did not receive any decision by that date and subsequently submitted the appeal on July 10, 2023, he acted well within the required legal timeframe. Therefore, the arguments presented by the applicant questioning the timing of the appeal

lack a solid basis. Ground b (ii) by the Applicant censures the PPAA for determining the 2nd Respondent's Appeal without an appealable decision from the Procuring Entity. I confirm that this ground is fundamentally flawed and represents a misinterpretation of the applicable legal framework. As previously articulated, an aggrieved tenderer retains the right to appeal when the procuring entity issues a decision post-complaint, when no decision is rendered, and even when the procuring entity cannot determine the complaint under section 96 of the PPA because of entry into force of the procurement or disposal contract. 55 In this instance, it has been established that the second Respondent correctly complained to the procuring entity, which subsequently failed to provide a decision within the mandated timeframe. Consequently, the appeal filed under section 97(2) of the PPA to the PPAA is legally sound. This argument, too, is, therefore, untenable. On the same point, the 1st respondent is faulted for assuming that the service of the administrative decision to the 2nd Respondent based on its U.S. address would not have reached within seven days. However, this line of reasoning should not occupy the court's attention extensively. A careful reading of the 1st Respondent's decision indicates that this argument was not made capriciously; rather, it stemmed from a genuine inquiry into the

existence of proof of service. The 1st Respondent was not merely speculating; it was diligently evaluating whether the service by ordinary mail alleged done by the 3rd Respondent was sufficient to provide the necessary notice to the 2nd Respondent. It ended with a no answer. I thus find the complaint without substance. The conclusion reached in-ground b also directly responds to the question posed in the first ground, specifically regarding whether the first respondent acted ultra vires by adjudicating an appeal submitted after the procurement contract was executed between the applicant and the third 56 respondent on July 8, 2023. The agreement was indeed signed on June 26, 2023; however, this signing was contrary to established law and procedures, rendering this argument without merit. The applicant further contended that the 1st respondent breached the rules of natural justice by introducing a new ground of appeal concerning the tender's award before the cooling-off period expired. The applicant argued that although Rule 13(5) allows the Public Procurement Appeals Authority to consider additional issues arising from the Respondent's reply, that requirement does not exempt the Authority from ensuring that all parties are heard on the new matters. Conversely, the learned state attorney representing the 1st, 3rd, and 4th respondents asserts that the breach of natural justice was

not an issue raised during the leave application, thus rendering it unsuitable for consideration without amendments and that all parties were allowed to present their cases after the legality of awarding the tender to the applicant was questioned by the 2nd Respondent. It is settled that the right to a fair hearing is an indispensable element of the principles of natural justice. It ensures that every individual is afforded a meaningful opportunity to present their case and to receive notice of matters that may not be immediately apparent to them. I have revisited 57 Appeal Case No. 3 of 2023-2024 and documents filed at the authority and before this court. It is clear from the records that the complaint about issuing the award notification to the Applicant on 16th June 2023 before the cool-off period expiry, contrary to section 60 (3) of the PPA, was not Authored by the 1st respondent, suo moto, but rather by the 2nd respondent, who was by then the appellant, as documented on page 24 last paragraph to page 25 of the 1st respondent's decision when submitting on the merit of the appeal: Narrating what was submitted by the appellant by then, the 1st respondent decision recorded thus: “The learned counsel submitted that in conducting this Tender process the 1st Respondent contravened the requirement of Section 60(3) of the Act for issuing an award prior to the expiry of the cool

off period. According to Section 60(3) of the Act, procuring entities are required to issue the notice of intention to award and accord tenderers a cool off period of seven working days for submitting complaints, if any. In this Tender the Notice of Intention to award was issued on 9th June 2023 and the cool off period ended on 20th June 2023. Prior to the expiry of the cool off period, on 16th June 2023 the 1st Respondent awarded the Tender to the 2nd 58 Respondent. Thus, the award made to the 2nd Respondent is invalid.” Both respondents in that appeal, including the current applicant, who served as the second respondent then, were granted an equal opportunity to address the appellant's submissions, including those on the complained issue. The applicant made no response to the point. The absence of a reaction from her side, whether by design or oversight, does not equate to a violation of natural justice. As agreed by the parties, Rule 13 (5) of the Public Procurement Appeal Rules of 2014, as amended in 2017, allows the 1st respondent to raise new issues emanating from the Respondent’s Reply. Guided by that rule, the 1st respondent determined the complaint on pages 47 to 48 of its decision and found the letter awarding the tender before the cooling period invalid. I thus agree with the learned State Attorneys that the applicant had every chance to engage but chose not to

utilise it. This ground, therefore, is a non-issue. Generally, the applicant failed to establish that the 1st respondent's decision is ultra vires and against the rules of natural justice. I firmly hold and find that the 1st respondent acted within its mandate to determine 59 the appeal filed by the 2nd respondent within time. Grounds (a) (i) and (ii) and b (i) and (ii) lack substance. The final ground requires assessing whether the 1st Respondent's decision is unlawful, illogical, and irrational for finding that the Applicant failed to disclose pertinent litigation history and information. The instructions in the tender document will assist the court in determining the point. As submitted by the parties, section IV of the tender document annexures OSG 5 to the 1st, 3rd, and 4th respondents' counter affidavit and Annexure SSA-9 in the applicant's affidavit provides for Eligibility and Qualification Criteria. Item 2.4 is a requirement for Litigation History, where all Tenderers were required to submit a litigation history, court or arbitral award decisions against the tenderer from 1 January 2018. The applicant's tender documents were submitted without revealing her litigation history, declaring to have none. Annexure PPAA 3 to the joint affidavit by the 1st, 3rd and 4th respondents contains the relevant section of the tender documents submitted by the applicant in which Item

2.4 of Section IV disclosed in the applicant’s Litigation History as follows: “ No consistent history of court/arbitral award decisions against the Tenderer since January 2018. 60 As in the first respondent's appeal, the contention here lies in the Summary Penalty Order issued against the applicant on 27 April 2023 due to corrupt practices. The Applicant contends he fulfilled all disclosure requirements mandated by the tender document as the matters complained of relate to her former employee arising between 2008 and 2015 that were far beyond the requirements of the Tender and that the summary penalty order relied upon by the first Respondent is irrelevant to the tender evaluation process. In contrast, the first to fourth respondents hold a contrasting view. Two points are discernible from the applicant's arguments: (i) that the award emanates from the investigation dated way back in 2008 to 2015 and, therefore, is not relevant to the matter and (ii) that it relates to its employee and not the company itself faulting to hold that the Applicant is vicariously liable for the acts committed by its employees without satisfying itself on the condition precedent for holding the Applicant vicariously liable. I have read the order attached to paragraph 8 of the 1st, 3rd, and 4th respondents' counter affidavit as annexure OSG 6 and paragraph 8 (b) of their Joint Reply Statement. The

Applicant was fined CHF 81 million due to employees' involvement in corrupt practices with foreign public officials relating to events from 2008 to 2015. This penalty, issued on April 27, 61 2023, against SICPA SA under Article 352 of the Swiss Criminal Procedure Code (Crim PC), highlights the company's failure to implement necessary organisational measures to prevent violations of corporate responsibility laws. Notably, the order attributes the conviction and liability directly to SICPA SA, not to any individual employee, and was issued within the timeline specified by the tender documents. Article 354 of the Swiss Criminal Procedure Code on which the order was made, availed to the court by the parties provides for the venue for rejection of the penalty order by the aggrieved party. The Article reads: “Art. 354 Rejection 1.A written rejection of the summary penalty order may be filed with the public prosecutor within 10 days by: a. the accused; b. other affected persons; c. if so provided, the Office of the Attorney General of Switzerland or of the canton in federal or cantonal proceedings respectively.

2. A statement of grounds must accompany a rejection other than that made by the accused. 62 3. Unless a valid rejection is filed, the sum m ary penalty order becom es a final judgm ent.” (emphasis added) No evidence was presented before the PPAA or even in this court demonstrating the applicant's rejection of the order, rendering the said summary penalty order a final judgm ent eligible for disclosure as a litigation History in the tender document. It should be understood that the applicant was only required to disclose the court/arbitral award since 1 January 2018, irrespective of its source, origin, or the time when the cause for the order arose. Having been so penalized on 27th April 2023, the applicant was mandatorily required to disclose the facts as per the tender document. This conclusion aligns with the findings of the first respondent, which relied on Article 354 (3) of the Swiss Criminal Procedure Code in concluding that as the Summary Penalty Order remains unchallenged, it is rendered a final judgment, which the applicant had an obligation to declare in the tendering process as part of the required litigation history. At page 47 of Annexure SSA-10, the PPAA concluded. “The Appeals Authority observed further that the summary Penalty Order was issued on 27th April 2023. 63 The deadline for submission of the tenders was on 25th May 2023. In the circumstances the

Appeals Authority finds that 2nd Respondent should have disclosed the existence of this final judgment.” The uncontested summary penalty order mentioned above leads to the obvious conclusion that the applicant does not meet the eligibility criteria set out in the Invitation to Tender (ITT) not only due to the failure to disclose essential information required by the tender documents but also under regulation 210 of the Public Procurement Regulations as amended for being convicted based on a final judgment issued within the timeframe specified in the tender documents, as outlined in Clause 3.8(d) of the ITT.: "3.8 A tenderer may be ineligible if— d) The tenderer is convicted, by a final judgm ent of any offence involving professional conduct ."(emphasis added) The emphasis on "final judgm ent" of any offence involving professional conduct underscores a definitive legal decision related to professional conduct, meaning only those with a clean, professional integrity record could tender. As correctly laid down by the PPAA, the Applicant missed 64 the required criteria. Given the analysis above, I find the first respondent's decision lawful and rational, firmly rooted in the applicable legal framework and aptitude. The third ground also fails. I find and hold the Judicial review application unmeritorious and proceed to dismiss it with costs. Order accordingly DATED at DAR ES SALAAM this 15th day of November 2024. E.Y. MKWIZU

JUDGE COURT: The ruling was delivered in the presence of Georgy Bega, advocate for the applicant, Francis Wisdom, State Attorney for the 1st, 3rd, and 4th respondents, and Joseph Rugambwa, advocate for the 2nd respondent, who also held the brief for Derogatious Mahinyila, advocate for the 5th Respondent. E.Y. MKWIZU

JUDGE 65