Re: ICC Case No. 15947/VR: Dowans (Claimant) and TANESCO (Respondent)

**RSM** Thu Aug 11, 2011 2:58 pm

RJM,

This is a good topic. I will come later to put give views. I am however curious as to why fmwalongo and GEVE have'nt contributed to this important topic. Reading from their contribution they seem to be loaded with legal knowledge.

fmwalongo and GEVE, wherever you are, lets have your view point!!!

**RJM** Tue Jul 19, 2011 2:58 pm

No doubt that this is one of the most famous and controversial arbitration case which this country has ever experienced. This is not only because of the tribunal ruled in favor Dowans (Claimant) but also the scandals involved in entire saga of Power Off-take Agreement [POA]. In general the saga has left scars to many of Tanzanians, if not all. The Arbitral Final Award was rendered on November 2010 and was published on the local newspapers from February 2011. I think, we as procurement practitioners we have millions of lessons to learn from the entire case [tendering proceedings – contract management – Arbitration Proceedings – Final Award – Late Filing of the award with the High Court of Tanzania]. Most of us might know or have reading what transpired in the entire saga.

At this juncture, I would like to argue my fellow practitioners to discuss main lessons surrounding the entire sage focusing the procurement legislations governing procurement in the country, arbitration process and outcomes specific based on the analyses/arguments made by the tribunal. I argue those of you who have gone through the arbitral award to come up with the issues to be discussed in the forum which will be beneficial to the practitioners. And those of you who have not gone through, it high time now to grab your copy to enable to contribute effectively.

To kick start, the discussion.

Are the contracts awarded in contravention of Section 31 (1) & (2) of the PPA 2004 automatically void?

In paragraphs 504, 505 and 506 of the award, Tribunal ruled out that the contracts awarded in contravention of referred section they are not automatically void; citing that the section say nothing about the performance of the contract and focus exclusively on the awarding and the signing of the contract. This was one of the strongest arguments tabled by TANESCO – that the contract between Richmond and TANESCO then assignment of the contract from Richmond to Dowans was void.

Now that we are amending our Act and Regulations, should we be very clear and bold on what will happen for those contracts awarded contravene the said the section. However, strangely in the Public Procurement Act 2010 Bill, the said powers have been conferred to the Accounting Officer.

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