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Jun 30, 2023

PPAA nullifies fuel marking award tender to SICPA SA

TANZANIA : THE Public Procurement Appeals Authority (PPAA) has nullified the tender awarded to Switzerland based Company, M/S SICPA SA for fuel marking, and directed the Tanzania Bureau of Standards

TANZANIA : THE Public Procurement Appeals Authority (PPAA) has nullified the tender awarded to Switzerland based Company, M/S SICPA SA for fuel marking, and directed the Tanzania Bureau of Standards (TBS) to start the process afresh.

Chairperson Justice (rtd) Sauda Mjasili and two members, Advocate Rosan Mbwambo and Pius Mponzi, reached into the decision after allowing in part an appeal lodged by M/s Authentix Inc, an American Company, to oppose the TBS decision of granting the tender in question to M/S SICPA SA.

“The Appeals Authority nullifies the (TBS) award to (SICPA SA). The TBS is ordered to re-start the tender process in accordance with the law. This decision is binding and can be enforced in accordance with section 97 (8) of Public Procurement Act,” they declared in their judgment delivered on August 11, 2023.

It ruled that TBS committed errors in law during evaluation of the tender for supply of fuel marker plastic cylinders, metal jerricans, fuel dosing system and fuel marker detection system involving three international companies, Authentix Inc, SICPA SA and Global Fluids International (T) Limited.

The Appeals Authority further held that the SICPA SA was ineligible to participate in the process for failure to disclose its litigation history, notably, the conviction of corrupt practices.

It reviewed the record of appeal and noted that on April 2, 2023, the office of the Attorney General of Switzerland issued a summary penalty order which required SICPA SA to pay CHF 81 million (over 216bn/-) being penalty for its employees’ involvement in corrupt practices with foreign officials.

The Appeals Authority observed further that SICPA SA did not dispute the existence of the said penalty rather it stated that the said penalty could not be considered as a court order or an arbitral award for it to be considered as a litigation history.

Furthermore, they said, the Authority reviewed the Swiss Criminal Procedure Code and observed that Article 354 allows an accused or any other person who has been affected by the issuance of the summary penalty order to file a written objection.

Having reviews the record of appeal, the Appeals Authority observed that SICPA SA had accepted such summary penalty order and no valid rejection has been filed.

“The Appeals Authority is of the firm view that since the summary penalty order was not challenged, the same became a final enforceable criminal judgment,” the members said.

Furthermore, the Authority considered SICPA SA proposition that the summary penalty order related to investigation conducted between 2008 to 2025, and therefore, does not fall within the disclosure period provided under the tender document.

“The Appeals Authority rejects the proposition since the summary penalty order has been issued on April 27, 2023 and therefore the duty of disclosure by (SICPA SA) still remains,” they said.

Equally, the Authority rejected the proposition by the Switzerland Company that the order concerned the employees and not the company itself on the reason that the company is vicariously liable for the acts of its employees.

The Appeals Authority also considered the complaint by the American company that TBS had awarded the tender to SICPA SA prior to the expiration of the cool off period. It noted that the notice of intention to award was issued on June 9, 2023 and the seven days for filing complaints expired on June 20, 2023.

According to the judgment on June 16, 2023 prior to the expiry of the cool off period, TBS awarded the tender to the Switzerland Company, M/S SICPA SA.

“Based on the requirement of section 60 (3) of the Act, the Appeals Authority finds the (TBS) to have erred in law for awarding the tender prior expiration of the cool off period. The Appeals Authority finds the TBS’s act in this regard to be highly irregular,” they ruled.

On April 24, 2023, the TBS floated the tender through the Tanzania National electronic Procurement System (TANePS). The deadline for submission of tenders was May 25, 2023. On the deadline, TBS received three tenders from Authentix Inc, SICPA SA and Global Fluids International (T) Limited.

The received tenders were subjected to evaluation and the tenders for Authentix Inc and Global Fluids International (T) Limited were disqualified, while that of SICPA SA was approved at a fixed contract of 4.55/-, VAT inclusive per litre of fuel marked for a period of three years.