A Critical Analysis of Namibia’s Public Procurement Supplier Remedies Regulatory Framework: Introducing the Standstill Period

Abstract

In public procurement, review bodies have generally been prohibited from interfering with concluded contracts. This is particularly so as time is of the essence in the procurement process and any disruptions delay the implementation of government contracts. Delays are undesirable as they lead to the inflation of costs, which at the end of the day government has to incur. The procuring process involves the high expenditure of public funds and requires it to be used in a manner that ensures that public money is not wasted. The disruption that comes with supplier remedies therefore has to be regulated to ensure it remains minimal while affording suppliers with the right to justice. It is for this reason that the standstill period was created in the European Union (EU) to set a time limit within which unsuccessful suppliers who feel that the correct procedures were not followed can lodge their complaints before the contract is concluded. Once the time period has lapsed, contracts awarded can then be concluded between the government and the successful supplier. Challenges to the concluded contract are prohibited after this. The implementation of the contract awarded is, in other words, allowed to run smoothly with no interruptions. At present, Namibia has no standstill period in place. Section 16 (2) of the Tender Board of Namibia Act 16 of 1996, allows for the contract awarded to be concluded immediately after notification to the successful supplier. This concluded contract can thus be challenged by unsuccessful suppliers who feel aggrieved and as a result disrupt the implementation of contracts awarded. Furthermore, Namibia has no administrative supplier remedies in place and judicial review, which involves court interference, is the only supplier remedies available to suppliers. Judicial review is however not suitable as it leads to high legal fees and delays which have a negative impact on the procurement process as a whole. Following the introduction of the standstill period in the EU, it has been adopted by some African countries. This paper looks at whether the standstill period should be introduced in Namibia, together with a specific procurement review structure as can be found in the procurement systems of other jurisdictions. Furthermore, the paper will look at how such a standstill period will work, should it be introduced, in order to reduce procurement court cases as they are clearly not ideal.