Section 45: Right of review

45. Right of review (1) An unsatisfied bidder shall, subject to section 39 (5), be entitled to ask the Review Panel to review the procurement proceedings where— (a) the chief executive officer of the public body does not issue a decision within the time specified in section 43 (4); (b) he is not satisfied with the decision; or (c) after the coming into force of the procurement contract, the value of which is above the threshold prescribed by regulations but does not exceed the prescribed threshold referred to in section 40 (3), he is not satisfied with the procurement proceedings on a ground specified in section 43 (1). (2) An application for review under subsection (1) shall— (a) be in writing; (b) specify the precise reasons for making the application; (ba) be accompanied by a statement of case and a witness statement, if any; and (c) be made within such time as may be prescribed. [Issue 9] P56 – 24 Revised Laws of Mauritius (2A) (a) For the purpose of subsection (2), a statement of case shall contain precisely and concisely— (i) the facts of the case; (ii) where a challenge has not been resolved, the reasons stated in the written decision issued pursuant to section 43 (4), if any; (iii) the issues in dispute and the arguments relating thereto; (iv) submissions on any point of law; and (v) any other submission on the case. (b) A witness statement shall contain a signed statement by the witness certifying that the witness statement faithfully reproduces the facts obtained from the examination of records, statements or other documents or from any other source in relation to the case before the Review Panel. (2B) (a) The unsatisfied bidder shall, at the time of his application for review, submit to the public body a copy of the application together with the documents specified in subsection (2). (b) The exchange of information and particulars relating to the statement of case and witness statement referred to in subsection (2A) shall be carried out in such form and manner as may be prescribed. (3) (a) An applicant for review shall be required to make such deposit as may be prescribed for filing the application. (b) Where the Review Panel determines that the application was frivolous, the deposit made shall be forfeited. (c) An applicant shall pay a non-refundable fee for processing the application in such amount, within such time and in such manner as may be prescribed. (d) Where the Review Panel determines that there is no merit in the application, 50 per cent of the deposit under paragraph (a) shall be forfeited. (4) Subject to subsection (5) or (8), where an application for review is made in accordance with this section, the Review Panel shall, on being satisfied ex-facie the application that there is a prima facie case for review, order the suspension of the procurement proceedings until the appeal is determined by the Review Panel. (5) The suspension provided by subsection (4) shall not apply where the public body certifies that urgent public interest considerations require the procurement proceedings to proceed. (6) A certificate issued by a public body pursuant to subsection (5) shall expressly state the grounds of the urgent public interest considerations and shall be made a part of the record of the public procurement proceedings. (7) A certificate issued by a public body pursuant to subsection (5) shall be binding on the Review Panel and the procurement proceedings shall proceed. P56 – 24 (1) [Issue 9] Public Procurement Act (8 interest considerations require the procurement proceedings to proceed. (6) A certificate issued by a public body pursuant to subsection (5) shall expressly state the grounds of the urgent public interest considerations and shall be made a part of the record of the public procurement proceedings. (7) A certificate issued by a public body pursuant to subsection (5) shall be binding on the Review Panel and the procurement proceedings shall proceed. P56 – 24 (1) [Issue 9] Public Procurement Act (8) (a) Subject to paragraph (c), the Review Panel shall determine an application for review under this section within such period as may be prescribed. (b) Subject to paragraph (c), any application for review pending immediately before the commencement of paragraph (a) shall, on the commencement of that paragraph, be determined within such period as may be prescribed. (c) Where the Review Panel does not determine the application for review within the period referred to in paragraph (a) or (b)— (i) the suspension of the procurement proceedings under subsection (4) shall lapse; (ii) the public body shall proceed with the award of the contract; and (iii) the Review Panel shall continue with the application for review. (d) Where an application for review is determined pursuant to paragraph (c), the Review Panel may dismiss the application for review or may, if it determines that there is merit in it, order the remedy referred to in subsection (10) (d). (9) Where the procurement proceedings have not been suspended under subsection (5), and the application for review of an unsatisfied bidder is determined in his favour, the Review Panel shall award him compensation limited to the recovery of the costs of bid preparation and participation in the procurement proceedings. (10) The Review Panel may dismiss an application for review or may, if it determines that there is merit in it, order one or more of the following remedies— (a) prohibit the public body from acting or deciding in an unauthorised manner or from following an incorrect procedure; (b) recommend the annulment in whole or in part of any unauthorised act or decision of the public body; (c) recommend a re-evaluation of the bids or a review of the decision for an award, specifying the grounds for such recommendation; or (d) recommend payment of reasonable costs incurred in participating in the bidding process where a legally binding contract has been awarded which, in the opinion of the Review Panel, should have been awarded to the applicant. [S. 45 amended by s. 22 (m) of Act 27 of 2012 w.e.f. 22 December 2012; s. 39 (m) of Act 27 of 2013 w.e.f. 21 December 2013; s. 43 (m) of Act 9 of 2015 w.e.f. 15 August 2015.] [Issue 9] P56 – 24 (2) Revised Laws of Mauritius PART VII – PROCUREMENT CONTRACTS