In a landmark ruling, the Public Procurement Review Panel led by legal practitioner Fillemon Immanuel has castigated the Central Procurement Board of Namibia (CPBN) for a decision on phase one repair works for the Tubusis Primary School and hostel. This followed an official review application by Radial Truss Industries (RTI) (Pty) Ltd against CPBN’s decision to reverse awarding the tender to RTI, which was later given to Ongoma Trading Enterprises CC.
The procurement contract relates to a tender to upgrade and complete emergency renovations, as well as repair works at the Tubusis Primary School outside Usakos in the Erongo region.
In his order, Immanuel, who is also chairperson of the review panel, told the CPBN and concerned stakeholders that Section 59 (1) of the Public Procurement Act is the only territorial ground for any review application.
This section is reinforced by Section 55(5) which stipulates what should happen when no review application is filed as well as Regulation 42(1) which specifies introducing the standstill period within which to file a review application.
“All these provisions are synonymous with that review applications are to be lodged with the review panel. None of them, however, clothe the public entities, including CPBN with the power to reconsider and set aside their administrative decisions, and doing otherwise would sum up to irregular conduct,” stated Immanuel.
CPBN chairperson Patrick Swartz told New Era on Tuesday that the matter would be presented before the board today.
“As soon as we are done, then we will communicate CPBN’s official position,” he noted.
Swartz, however, said the only two options available to the CPBN is to either accept the decision made by the review panel or seek legal action in the High Court.
The Public Procurement Act (No. 15 of 2015) which came into operation on 1 April 2017 succeed the repealed Tender Board of Namibia Act. No 16 of 1996.
In terms of Section 2 of the new Act, one of the objectives is to promote integrity, accountability, transparency, competitive supply, effectiveness, efficiency, fair dealing, responsiveness, informed decision making, consistency, legality, and integration in the procurement of assets, works and services.
Until recently, public entities have been advising bidders aggrieved by selection decisions to apply for reconsideration at the institutions. However, this means that public entities appear to have been relying on Regulation 38(2)(c) and 38(3) of the Act, which the review panel has now declared as non-jurisdictional grounds for review, let alone for reconsideration.
Thus, reliance on these regulations by public entities, including CPBN to revisit and set aside their decisions, is misplaced and therefore unlawful as ruled by the review panel.
The review panel remained adamant that in terms of the doctrine of functus officio, administrative bodies are not permitted to revisit and set aside their own decisions, no matter how wrong and painful such decisions may be.
This doctrine serves to insulate administrative processes from the vulnerability of afterthoughts, like what appears to be the case in this instance, where the administrative functionaries had a specific mindset throughout the first evaluation.
According to the review panel, this practice changed abruptly when Ongoma Trading Enterprises CC started communicating with the CPBN about their unfavourable bid’s consideration.
Further regard was held to the principles of the apparent anomaly (that an unlawful act can produce legally effective consequences) and presumption of validity (until an administrative act is found to be unlawful by a court, there is no certainty that it is).
“Because the CPBN was not clothed with the power to revisit and set aside its own decisions, the review panel set aside its second Notice of Selection of Award in terms of Section 60(d) of the Act and ordered to proceed in the manner consistent with Section 55(5), for there has never been an application for a review under the first notice of selection for award favouring Radial Truss Industries Pty Ltd,” Immanuel explained.
He concluded, “therefore, for legal certainty, review applications are filed with the review panel within seven days of Section 55(4) Notice and by so doing, it will eliminate the conflict between Sections 59(1) and 60(c) as animated by Judge Masuku in CPB v Nangolo case.”