Review proceedings

Competent review bodies

Which bodies are competent to review alleged breaches of procurement legislation? Is it possible to appeal against a review body’s decisions?

Under the Government Procurement Act (Cap. 120) (the Act), challenges can be brought to review alleged breaches of the procurement legislation before the Government Procurement Adjudication Tribunal (the Tribunal). The Tribunal is constituted under the Act and has the power to hear and issue a determination on a challenge.

The Act does not provide for appeals against the determination of the Tribunal. However, in a situation where an order or determination is made against the contracting authority, the contracting authority is not precluded from seeking judicial review of a determination or order of the Tribunal before the Singapore courts.

Time frame and admissibility requirements

How long do administrative or judicial review procedures generally take?

While there is no specific time frame, it generally takes around one to two months to obtain leave of court for the hearing of the judicial review application, and a further period of around three to five months for the judgment to be delivered.

What are the admissibility requirements for an application to review a contracting authority decision?

A bidder that wishes to bring a challenge before the Tribunal to review the contracting authority’s decision must, within 15 days of the date the facts constituting the basis of the challenge first took place, lodge a notice of challenge with the Tribunal, serve a copy of the notice of challenge on the contracting authority undertaking or that has undertaken the procurement that is the subject of the challenge and pay the fee (currently S$500) and deposit (currently S$5000).

The notice of challenge shall be duly signed and in writing, and shall contain the following information and be accompanied by such documents:

  • the name, address and telephone and facsimile numbers of the bidder bringing the challenge;
  • where the bidder is an individual, the country or territory of which he or she is a national;
  • where the bidder is a company or association or body of persons, the country or territory under which laws it is formed and the country or territory in which it has its principal place of business;
  • the contracting authority against whom the challenge is brought;
  • sufficient identification of the procurement that is the subject of the challenge, including the good or service (or good and service, as the case may be), procured or to be procured and the estimated value of the procurement;
  • details of the duty owed by the contracting authority under section 7 of the Act that the contracting authority is alleged to have breached, including an identification of the relevant provision of the GPR;
  • sufficient identification of the alleged breach of duty;
  • the date on which the alleged breach of duty first took place;
  • a statement of the loss or damage that the bidder has suffered or reasonably risks suffering as a result of the breach and the remedies sought; and
  • whether the bidder has sought resolution of the matter in consultation with the contracting authority and, if so, the outcome of the consultation.

 

The applicant must also satisfy the following:

  • the procurement that is the subject matter of the challenge is a procurement subject to the Act;
  • the regulation that the contracting authority concerned is alleged to have breached is applicable to the procurement that is the subject of the challenge;
  • the subject of the procurement was initiated after the commencement of the Act; and
  • the applicant is a bidder to whom the contracting authority owes a duty and who has suffered, or reasonably risks suffering, loss or damage as a result of the breach.

 

The Tribunal may declare the challenge to be invalid during the preliminary hearing if the notice of challenge does not comply with the above requirements or not made within the time prescribed, unless the Tribunal is satisfied that there has been no unreasonable delay on the part of the applicant.

What are the time limits within which applications for the review of contracting authority decisions must be made?

Challenges on the contracting authority’s decisions shall be brought before the Tribunal within 15 days of the date the facts constituting the basis of the challenge first took place.

Suspensive effect

Does an application for the review of a contracting authority decision have an automatic suspensive effect on the contract award procedure?

A challenge brought under the Act does not have an automatic suspensive effect on the contract award procedure. An applicant who has lodged a notice of challenge may apply to the Tribunal for an order to suspend, pending the determination of the challenge:

  • the procedure leading to the award of the contract for the procurement that is the subject of the challenge; or
  • the implementation of any decision made while undertaking the procedure referred to above.

 

The Tribunal may refuse to make the order, make the order unconditionally or impose terms and conditions upon making the order. If it refuses, it must give a written explanation of its reasons for refusal. Generally, it will not make an order of suspension if it is against public interest or if the procurement contract has already been awarded at the date of hearing of the application for the order.

If the order of suspension is granted, the contracting authority may apply to the Tribunal for the order to be varied or rescinded, provided that this takes place before the challenge is determined. The Tribunal may also vary or rescind the order at its own discretion.

Approximately what percentage of applications for the lifting of an automatic suspension are successful in a typical year?

We are unaware of any available statistics on this.

Challenges to contracting authority decisions

How customary is it for contracting authority decisions to be challenged?

It is rare for contracting authority’s decisions to be challenged. Challenge proceedings and Tribunal determinations are not reported. We are also not aware of any available statistics on the occasions challenge proceedings have taken place.

Violations of procurement law

If a violation of procurement law is established in review proceedings, can this lead to the award of damages?

The Tribunal has the power to:

  1. order the contracting authority to pay the costs of participation in the qualification of bidders, or the costs of tender preparation, reasonably incurred by the applicant for the purposes of the procurement; or
  2. award the applicant the costs of the challenge proceedings if it did not incur the costs in point (1).

Is it possible for a concluded contract to be set aside following successful review proceedings?

The Tribunal does not have the power to order a concluded contract that has been awarded to be set aside following the successful review proceedings.

Typical costs

What are the typical costs involved in making an application for the review of a contracting authority decision?

The costs associated with making a challenge for the review of a contracting authority’s decision are as follows:

  • an application fee (currently S$500):
  • an application fee (currently S$500);
  • costs of legal representation (if any);
  • costs of the Tribunal including the deposit (currently S$5,000);
  • reasonable expenses necessarily incurred for attendance; and
  • remuneration of any expert witnesses appointed by the Tribunal.