LIST OF ABBREVIATIONS

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ... 3

INTRODUCTION ... 4

1. APPEAL PROCESS ... 5

2. APPEALS ANALYSED DURING THE THIRD TERM 2011-2012 (January to March 2012) . 6

2.1. ADMISSIBLE AND FOUNDED APPEALS ... 6

2.2. ADMISSIBLE AND UNFOUNDED APPEALS ... 7

2.3. INADMISSIBILITY OF APPEALS ... 7

3. SUMMARY OF THE APPEALS ANALYSED ... 7

CONCLUSION AND RECOMMENDATIONS ... 8

DECISIONS TAKEN ON THE APPEALS ANALYZED DURING THIRD TERM OF THE

FISCAL YEAR 2011-2012 ... 9

A.

ADMISSIBLE AND FOUNDED APPEALS ... 9

B.

ADMISSIBLE AND UNFOUNDED APPEALS ... 12

C.

INADMISSIBLE APPEALS ... 21

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BD

: Bidding Document

BNR

: Banque Nationale du Rwanda

CHUB

: Centre Hospitalier Universitaire de Butare

EWSA

: Energy, Water and Sanitation Authority

FARG

: Fonds d’Assistance aux les Rescapés du Génocide

KCP

: Kigali Central Prison

Ltd

: Limited

MIFOTRA

: Ministry of Public Service and Labor

MINEDUC

: Ministry of Education

MPD

: Medical Procurement and Distribution Division

NIRP

: National Independent Review Panel

ORINFOR

: Office Rwandais d’Information

PE

: Procuring Entity

PRIMATURE

: Prime Minister’s Office

RBC

: Rwanda Biomedical Centre

RDB

: Rwanda Development Board

RNRA

: Rwanda Natural Resource Authority

RPPA

: Rwanda Public Procurement Authority

RSSB

: Rwanda Social Security Board

SA

: Société Anonyme

SARL

: Société à Responsabilité Limitée

SPIU

: Single Project Implementation Unit

TCT

: Tumba College of Technology

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The National Independent Review Panel, ‘’NIRP’’, is provided by the law Nº 12/2007 of 27

th

March 2007 on Public Procurement. The panel has the role of receiving, and analyzing the

appeals presented by different bidders. To be acceptable, an appeal has to explain a specific

act of omissions or commissions contravening the law on public procurement, or other

procurement regulations.

Within thirty days (30) from the receipt of the appeal, NIRP takes the decision on the received

appeals in conformity with the aforementioned law and regulations. However, if the panel is

unable to reach a decision within a thirty-day (30) period, it shall inform both the procuring

entity and the complainant of the extra time which shall not go beyond thirty (30) days. The

decisions thereof are transmitted to the concerned procuring entity and a copy is reserved to

the complainant and any other interested organ.

1.

APPEAL PROCESS

Pursuant to the article 70 of the Law N º 12/2007 of 27/03/2007 on Public Procurement, within

7 days following the time the complainant became aware of the circumstances giving rise to

the complaint, the complaint is addressed to the chairman of NIRP and must be comprised of

the following elements:

The identification of the complainant: names, address, and telephone number;

The identification of the procuring entity;

The decision against which the review is requested;

Date on which the decision was taken and when the complainant became aware of it;

The organ to which the review is addressed;

The signature or thumb print of the applicant;

The payment slip for appeal fee, and

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When an appeal is introduced, the procurement process must be suspended until a decision

is taken by the Panel. The documentations which are consulted before taking the decision are

transmitted by the concerned procuring entity.

Based on the Law and Regulations governing the public procurement, the Panel’s decisions

are taken either in favor of the applicant, in favor of the procuring entity, or the appeal is

rejected due to the irregularity of appealing procedure.

2. APPEALS ANALYSED DURING THE THIRD TERM 2011-2012 (January to March 2012)

In this third term of the financial year 2011/2012, the NIRP received 28 dossiers of appeals on

which the decisions were taken in fifteen (15) sessions.

The decisions were taken following the observations made during the analysis of different

appeals lodged by different complainants. Such analysis permitted Panel members to judge

the appeals as admissible and founded, admissible and not founded or inadmissible. Among

the 28 received appeals, 6 were admissible and founded, 19 were admissible and not

founded; whereas the remaining 3 were inadmissible due to the irregularities in appealing

procedures.

2.1. ADMISSIBLE AND FOUNDED APPEALS

To be judged admissible and founded, an appeal has to be introduced in accordance with the

procedure of appeal provided for in article 69 of the Law Nº12/2007 of 27

th

March 2007 on

Public Procurement, and articles 36 and 37 of the Ministerial Order Nº001/08/10/MIN of

15/01/2008 establishing the Regulations on Public Procurement and Standard Bidding

Documents.

If the appeal is against the Procuring Entity’s decision that contravenes the law on Public

procurement and its subject matter is sound, NIRP’s decision is therefore taken in favor of the

complainant.

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2.2. ADMISSIBLE AND UNFOUNDED APPEALS

The complainants introduced their appeals taking into consideration the appeal’s procedure

but ignoring the basis of facts. Therefore, after analyzing the latter, Panel members decided to

reject and dismiss appeals.

2.3. INADMISSIBILITY OF APPEALS

For the appeals to be inadmissible, the complainant would have acted contrary to the

provisions of article 69 of the law Nº12/2007 of 27

th

March 2007 on Public Procurement, and

articles 36 and 37 of the Ministerial Order Nº001/08/10/MIN of 15/01/2008 establishing the

Regulations on Public Procurement and Standard Bidding Documents while lodging his or her

protest.

3. SUMMARY OF THE APPEALS ANALYSED

The table below shows the number of the appeals presented during the third term of financial

year of 2011-2012 (from January to March 2012):

DESIGNATION NUMBER OF APPEALS PERCENTAGE

A. ADMISSIBLE AND FOUNDED APPEALS 06 21.4%

B. ADMISSIBLE AND UNFOUNDED APPEALS 19 67.9%

C. INADMISSIBLE APPEALS 03 10.7%

TOTAL 28 100%

The above table shows that 19 cases were dismissed because complaints lodged by the

complainants were unfounded (see details in annexe page10-18). Three (3) appeals were

inadmissible because the complainant did not honor the appealing procedure (see details in

annexe page 19)

Among 28 appeals analyzed, the decisions on 24 appeals were taken within 30 days.

The case of appeal on tender offered by FARG concerning the supply of 22,000 mattresses

showed that what was marked on the Sample was finally erased.

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4

. COMPARATIVE ANALYSIS ON THE APPEALS ANALYZED IN THE FIRST AND

SECOND TERMS OF 2011/2012.

DESIGNATION PRESENTED APPEALS PERCENTAGE

1st term 2nd term 3rd term 1st term 2nd term 3rd term

Admissible and founded appeals 03 09 06 15.7% 39.3% 21.4% Admissible and unfounded appeals 13 11 19 68.4% 50% 67.9% Inadmissible appeals for procedure defects

03 07 03 15.7% 10.7% 10.7%

Total 19 27 28 100% 100% 100%

The above comparative table shows that there is increment in the number of appeals, in first

quarter of the fiscal year, NIRP received 19 appeals, in the second one 27 appeals were

registered and in this third quarter 28 cases were received. This term and first one were

characterized by the very big percentage of the admissible and unfounded appeals.

CONCLUSION AND RECOMMENDATIONS

NIRP members analyzed 28 appeals during the third term of the financial year 2011/2012,

among those cases, 24 were analyzed and decisions thereof were taken within prescribed 30

days.

After noticing the case related to the alteration of sample after its delivery, the services of

National Public Prosecutor Authority were requested to carry out the investigations before

concluding on that matter. NIRP recommends RPPA to advise procuring entities on how they

can keep securely the samples received from bidders.

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DECISIONS TAKEN ON THE APPEALS ANALYZED DURING THIRD TERM OF THE FISCAL YEAR 2011-2012

A. ADMISSIBLE AND FOUNDED APPEALS

Date of Recepti-on Date of the Decision Nº of the decision Complainant Procuring Entity

Tender Nº and title Subject of appeal Decision of NIRP

01 06/01/12 17/01/12 008/2012 /NIRP ETS RUBANGUR A ET FILS RDB Tender Nº 1022/G/ICB/ITB/RD B/Gor/11 for supply, installation and sheltering of 27 generators in national backbone main nodes for RDB

Appeal against provisional

notification of tender loss

Considering the urgency of the tender and given that the provisional successful bidder did not fulfill some of the technical requirements as requested; and has been tolerated; for equity, what ETS RUBANGURA ET FILS is lacking should also be tolerated, and its financial offer be evaluated. NIRP orders re-evaluation of bids and consider ETS RUBANGURA ET FILS in the process and award the tender to the financially lowest evaluated bidder. 02 13/01/12 23/01/12 11/2012/ NIRP HYDROBAT EL MIFOTRA Tender N◦ 11/DAF/MIFOTRA/2 011-2012 for maintenance of otis elevators

Appeal Against The Decision of The Tender Award

Considering that both the provisional successful bidder and the complainant, did not fully meet the requirements of the tender document ITB 11.1; NIRP decides to cancel the decision taken by MIFOTRA and ordering that the procurement proceedings be terminated.

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Date of recepti-on Date of the Decision Nº of the decision Complainant Procuring Entity

Tender Nº and title Subject of appeal Decision of NIRP

03 10/02/12 27/02/12 21/2012/

NIRP

Prime impex SFB Tender Nº

012/G/2011/SFB of supply and

installation of furniture for SFB

Appeal Against The Tender Award Decision

Members of the National Independent Review Panel decided to nullify the decision taken by SFB to award lots 1 and 2 to Top 20 Company and orders to award lots 1 and 2 to PRIME IMPEX RWANDA LTD. During the execution of the contract SFB should inspect and test the furniture before their reception to ensure their conformity to the technical specifications indicated in the bidding document and changes accepted by the winner. However, members decided that lot 6 be cancelled as recommended by the SFB Tender Committee. 04 01/03/12 21/03/12 25/2012 /NIRP Shelter international NBR Tender Nº 54/S/2011-NO/CBS/BNR for cleaning services of BNR head quarter’s and branches.

Appeal Against The Tender Award

Considering that both parties did not exhaustively provide proofs of all listed equipment, tools and materials; for fairness, NIRP is hereby nullifying the decision taken by the National Bank of Rwanda tender committee and orders re-evaluation of the bids and consider Shelter International’s bid in the process.

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Date of Recepti-on Date of the Decision Nº of the decision Complainant Procuring Entity

Tender Nº and title Subject of appeal Decision of NIRP

05 15/03/12 28/03/12 32/2012/ NIRP Computech Africa ltd MINALOC Tender Nº 20- F/MINALOC/2011-2012 for supply of 1000 laptops

appeal against the tender award

Since the provisional successful bidder did not have the manufacturer authorisation as required by the bidding document in ITB 11.1 (h), NIRP decides to annul the decision taken By MINALOC and award the tender to COMPUTECH because it is the most responsive bidder.

06 14/03/12 28/03/12 31/2012/ NIRP Shelter international RSSB Tender N◦ 12/S/2011-2012 for cleaning services.

appeal against the decision of the tender award

Considering that RSSB did not respect the principle stated in

article 39 of the Law Nº 12/2007 of 27th March

2007 on Public Procurement which states that the successful bidder shall be the lowest responsive bidder; NIRP decided to annul the decision taken by RSSB and award the tender to Shelter-International.

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B. ADMISSIBLE AND UNFOUNDED APPEALS

Date of Reception Date of the decision Nº of the decision Bidder Procuring Entity

Tender Nº and title Subject of Appeal Decision of NIRP

1 05/12/11 30/01/ 12 13/2012/ NIRP UBENODE Enterprise Ltd KCP Tender of renting both restaurant and canteen of the Kigali central prison

Appeal Against the Decision of denying it the awarded Tender

Considering that the clarification given by the UBENODE Enterprise Ltd was not legally acceptable because it changed the content of its offer and pursuant to article 38 Para.2 of the law12/2007 of 27th March 2007 on Public Procurement; NIRP decided to reject its appeal because it was baseless. 2 13/12/11 04/01/12 002/2012 /NIRP TOP Cleaners RNRA Tender Nº 011/RNRA/2011 -2012 for cleaning services and garden maintenance for RNRA Headquarter and its branches.

Appeal Against the Decision of denying it the awarded Tender

Members of NIRP observed that Top cleaners proposed supervisor’s certificate of service rendered did not prove experience of three years as requested in the tender document and thus NIRP decided to dismiss its appeal because it was baseless.

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Nº Date of Recepti-on Date of the decision Nº of the decision Bidder Procuring Entity

Tender Nº and title Subject of Appeal Decision of NIRP

3 10/01/12 23/01/12 007/2012 /NIRP Computer Point MINEDUC Tender Nº /F/IT/2011-2012/MINEDUC related to the supply of IT equipment (desktop and laptop, smart board, dell latitude xt3, blackberry playbook & ipad2, e-infrastructure)

Appeal against the decision of not awarding it a tender

Since Computer Point did not provide Bid security; in accordance with the provision of article 33, Para. 2 of the Law No12/2007 of 27/03/2007 on Public Procurement, NIRP decided to dismiss the appeal lodged by Computer Point because it is baseless. 4 19/12/12 06/02/12 14/2012/ NIRP Genuine Company Ltd Nyamagabe District Tender relating to “Réhabilitation des routes à l’aide des pavées dans la ville de Nyamagabe, Secteur Gasaka, Province du Sud»

Appeal against its disqualification.

Considering that Genuine Company Ltd submitted invalid certificate of non bankruptcy and provided only one similar reference instead of 3 requested by the bidding document, NIRP decided to dismiss its complaint because it was baseless. 5 29/12/11 11/01/12 004/2012 /NIRP ALTEC S.A.R.L SPIU Tender Nº 057/F/2011-SSF HIV for supply and installation of equipment against lightning for solar systems in 30 Health Centers.

Appeal against the tender award

Since ALTEC SARL did not provide the coherent and realistic plan of delivery as requested by the tender document in ITB 11.1, 9º, NIRP decided to dismiss its complaint because it was baseless.

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Nº Date of Recepti-on Date of the decision Nº of the decision Bidder Procuring Entity

Tender Nº and title Subject of Appeal Decision of NIRP

6 20/12/11 11/01/12 92/2012/ NIRP ENDSCO LTD Ngarama Hospital; Tender Nº 06/H.NG/CPM/2011-2012 relating to hygiene services

Appeal Against its disqualification.

Since, ENDSCO LTD provided planning not coherent with the activities to be carried out; NIRP decided to dismiss its appeal because it was baseless. 7 17/01/12 13/02/12 16/2012/ NIRP Forward Enterprise Ltd

PRIMATURE Tender to supply newspapers

Appeal against its disqualification.

Given that FORWARD ENTERPRISE LTD submitted its valid trading licence after the deadline for submitting bids, NIRP decided to dismiss its appeal because it was baseless.

8 18/01/12 30/01/12 97/2012/ NIRP

MFI Office Solutions Ltd

NBR Tender for supply and implementation of core banking & ERP

Appeal against the decision of the tender award

Since MFI Office Solutions Ltd‘s technical bid did not comply with technical responsiveness checklist for core banking system which provides that “the bidder must describe how its technical bid responds to each requirement” as requested in the bidding document; NIRP decided to dismiss its appeal because it was baseless.

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Nº Date of Recepti-on Date of the decision Nº of the decision Bidder Procuring Entity

Tender Nº and title Subject of Appeal Decision of NIRP

9 20/01/12 13/02/12 15/2012/ NIRP Raka Business Consult RDB Tender Nº 889/G/ICB/TD/RDB CEDP/GOR/11 of supply, installation, testing and commissioning an integrated time attendance system using biometric technology (fingerprint), human resource management information system and payroll information system.

Appeal against the tender award decision

Basing of the fact that Raka Business Consult provided the personnel whose CVs were not signed; Considering also that the donor issued a no objection; basing on article 71, para 1 of Law on Public procurement, members of the NIRP decided to dismiss its complaint. 10 23/01/12 20/03/12 28/2012/ NIRP Lyna Holdings FARG TENDER Nº 01/AONO/F/2011-2012/FARG “ryo gutanga matelas 22000 z’abanyeshuri bafashwa na FARG”

Appeal against the tender award

Lyna Holdings was eliminated because its sample of mattress was marked which was contrary to the provision of clause 11,8 of the bidding document which provided that the complete sample of mattress to be supplied, must not be marked, but its mattress was marked which led NIRP to dismiss its appeal.

Nº Date of Date of

the

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Reception decision decision Entity

11 27/01/12 05/03/12 22/2012/ NIRP

MCI ORINFOR Tender N◦

038/F/2010

IR/ORINFOR/RPPA for modification works for OBK building and supply, installation and commissioning of Radio and television studios and other related services to include: construction, mechanical, electrical and studios installation, refurbishment transformation of the ORINFOR-OBK building for Radio and TV project 2010

Request to execute the judgment RAD 0039/11/HC/KIG of 24/11/2011

Considering that MCI was disqualified because it did not submit some of the required manufacturer’s Authorization and it again failed to quote for the required factory training. (NIRP) decided to dismiss the appeal lodged by STUDIO HAMBURG Media Consult International (MCI) GmbH because it is baseless

.

12 31/01/12 20/02/12 17/2012/ NIRP

ECOPEF City of Kigali Tender Nº 126/-DT/11/11/CoK to supply fertilizers for 100 ha of radical terraces in Nduba Sector, Gasabo District.

Appeal against the tender award decision

ECOPEF was eliminated because its financial offer was not the lowest. So NIRP members decided to dismiss ECOPEF’s complainant because it was baseless

Nº Date of Reception Date of the Nº of the decision Bidder Procuring Entity

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decision 13 31/01/12 21/03/12 29/2012/ NIRP Dash-S technologies Inc Kicukiro District Tender Nº 04/S/KIC-DISTRICT/2011 of e-filing consultancy services for kicukiro District land office.

Appeal against the tender award decision

Basing on the re-evaluation report, Dash-S technologies and IT consulting group technical proposals showing that the provisional successful bidder scored more than the complainant on technical grounds and quoted lower prices; NIRP therefore decided to reject its appeal because it was baseless. 14 06/02/12 20/02/12 24/2012/ NIRP Kigali Professional Cleaners CHUB Tender Nº 140 bis/CHUB/ITC/ADM/ S/12/11-12 of cleaning and gardening services for CHUB

Appeal against the tender award decision

KPC bid submission letter was not conforming to the required bid submission form and no credit line certified by a bank equivalent to the total value of the bidder’s price was in the KCP bid as required in the tender document, thus NIRP members decided to dismiss its appeal because it was not founded.

15 09/02/12 27/02/12 18/2012/ NIRP

NOVAKI Kirehe District Tender N◦ 019/W/ONC/2011/2 012/KRHE of Rehabilitation and extension of Rwantinde Health Post, in Kirehe District

Appeal against the decision of the tender award

The CV of Mr. Jean Bosco SAFARI, a proposed director of project by NOVAKI, did not prove experience of 2 years as requested in the tender document, NIRP decided to dismiss its appeal.

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Nº Date of Reception Date of the decision Nº of the decision Bidder Procuring Entity

Tender Nº and title Subject of Appeal Decision of NIRP

16 10/02/12 27/02/ 12 20/2012/ NIRP WODEC Kibuye Hospital Tender N◦ 01/HOPKIBUYE/11/ 2011 of cleaning and security services for Kibuye Hospital of renting both restaurant and canteen of the Kigali central prison

Appeal against the tender award decision

WODEC Ltd had no required cleaning experience in sanitary institutions. In technical clauses set out in the bidding documents, the bidder should have cleaning services delivery experience in sanitary institutions. This experience was required because some particular services like cleaning sanitary institutions, burying dead bodies, transportation of ill people, were among those to be delivered by the successful bidder. In addition, the technical clauses had required bidders to identify their specific techniques for collecting, evacuating, and destroying wastes which WODEC Ltd did not do. Concerning security services, WODEC Ltd did not provide certificates proving its experience in that domain while they were also required in technical clauses, therefore NIRP decided to reject its appeal because it was baseless.

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Nº Date of Reception Date of the decision Nº of the decision Bidder Procuring Entity

Tender Nº and title Subject of Appeal Decision of NIRP

17 15/02/12 05/03/12 23/2012/ NIRP Pronet International Ltd RBC Tender N◦ 004/S/N/2011/12/RB C of provision of cleaning services to RBC institutions.

Appeal against the decision tender award

Considering that Pronet International Ltd had no the required experience of four years as required in ITB, NIRP decided to dismiss its appeal because it is baseless.

18 02/03/12 21/03/12 33/2012/ NIRP

ECM Rubavu District Tender of

construction of Gisenyi Modern market phase II in Rubavu District

Appeal against the tender award decision

Both parties (the complainant and the successful bidder) lacked some of the tender document requirements and since the contract has been entered into and given article 71 para 1, point 6 of the law on public procurement, ECM deserves no right because its appeal is baseless due to its failure to meet all the requirement of the bidding document and given also article 71 para 1, point 4 of the above law, NIRP was not in the position to take any decision. Nº Date of Reception Date of the decision Nº of the decision Bidder Procuring Entity

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19 07/03/12 28/03/12 34/2012/ NIRP EF Outdoor Rwanda EWSA Tender N◦ 08/G/2011-ICB/EARP-EASSDP related to the supply of electricity cables, conductors and accessories

Appeal against the tender award decision

EF outdoor Rwanda was substantially responsive but it was eliminated because it quoted higher prices compared to its co-bidders who were also substantially responsive to the requirement of the biding document. NIRP decided to reject its appeal because it was baseless.

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c.

INADMISSIBLE APPEALS

Nº Date of Reception Date of the decision Nº of the decision Bidder Procuring Entity

Tender Nº and title Subject of Appeal Decision of NIRP

01 03/01/12 30/01/12 10/2012/ NIRP

SOCODIF Rulindo District Tender Nº 06/RUL/2011-2012 for « Fourniture des vivres pour les tigistes».

Appeal against the decision of the tender award

Considering that SOCODIF did not lodge its appeal before Rulindo District Independent Review Panel; NIRP decided to reject its appeal because of the appeal procedure’s irregularity. 02 28/02/12 21/03/12 26/2012/ NIRP A to Z textile mills Ltd RBC/MPD Tender Nº MPD/DA/AOIO/092/ 2011 for Supply And Delivery Of Ant-Malaria Commodities (Long Lasting Insecticide Treated Mosquito Nets)

Appeal against the decision of the tender award

Considering that A to Z Textile Mills Ltd did not respect the prescribed period of 7 days for introducing its appeal; NIRP decided to reject its appeal because of the appeal procedure’s irregularities. 03 15/02/12 14/03/12 27/2012/ NIRP EHAC Ruhango District Tender Nº 004/07/11/W/N/RD for Construction works of Ruhango Modern market phase III.

Appeal against the decision of the tender award

Considering that EHAC did not respect the prescribed period of 7 days for introducing its appeal as stated for by Law on Public Procurement and that it did not pay the required appeal fees before the Independent Review Panel of Ruhango District; NIRP decided to reject its appeal because of the appeal procedure’s irregularities.

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