Appeal to PPAA against Blacklisting under PPA 2011

**RJM** Wed Jan 02, 2013 5:12 pm

Section 62(6) of the PPA 2011 allows tenderer to appeal against blacklisting decision to the PPAA. The typical section reads as follows “A tenderer blacklisted pursuant to this section may appeal against the decision to the Appeals Authority within twenty one (21) days from the date when he became aware or should have become aware of such decision. Going by the referred section, the tenderer can be blacklisted if; fraud or corrupt practices has been established against the tenderer; the tenderer fails to abide with a bid securing declaration; the tenderer breaches a procuring contract; the tenderer makes false representation about his qualifications during tender proceedings; and any other grounds that may be deemed necessary by PPRA.

From my own view, this is very very interesting provision as it tries to broaden the dimension of transparency and fairness in the procurement process which is good as we are all praying for that however sometimes could be very tricky and open a Pandora's box. One thing which I am not sure is whether the reasons for blacklisting as outlined above are appealable or not. This is a big challenge to PPAA and time will tell us how it will deal with this.

On the same note, I am picking up the appealing of blacklisting originating from breach of a procuring contract. As we all know the contract documents do have Dispute Resolution clauses within the framework of the contract which outlines how disputes should be dealt with i.e. amicably settlement, adjudication, arbitration and ultimately court. It may be construed that PPAA will replace these mechanisms of dealing with dispute because blacklisting we are referring here will be result of termination whereby supplier, service provider, contractor or consultant fails to perform his obligation under the contract. I have seen numerous terminations challenged using provisions governing the contract and eventually termination notice declared invalid. For PPAA to review the blacklisting appeal, PPAA has to go through the entire case as an Adjudicator or an Arbitrator does by analyzing merits of the facts presented by each party in the contract before determine the matter. Is this the direction which PPAA want to go?

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