DAR ES SALAAM: THE High Court, Main Registry in Dar es Salaam, has allowed the Tanzania Bureau of Standards (TBS) to challenge the nullification of tender awarded to Switzerland based Company, M/S SICPA SA, on fuel marking process.
Judge Wilfred Ndyansobera arrived at a decision after granting an application for leave to apply for prerogative orders of certiorari and mandamus against the decision given by the Public Procurement Appeals Authority (PPAA) on the matter.
"I find the application for leave is deserving of being granted and it is accordingly granted with no order as to costs. The parties are enjoined to act in accordance with the law, in particular, paragraph (b) of sub-section (2) of Section 101 of the Public Procurement Act," he said.
The Judge pointed out that in an application for leave, all that the court looks for is whether the Applicant has sufficient interest or locus standi, whether he has an arguable case and whether he has timeously filed his action.
Having considered the law under which this application has been brought, he was satisfied that the application for leave has been made timeously, that is within six months after the date of decision to which the application for leave is sought.
"Furthermore, the applicant has met the requirement under section 101 (1) of the Public Procurement Act of 14 days period which requires an aggrieved party to file judicial review to the High Court within such time of the date of delivery of decision," the judge said.
He was also satisfied that the TBS has established that it has an arguable case worthy of further consideration and has sufficient interest or locus standi on the matter.
The judge pointed out that TBS is enjoined to undertake measures for quality control of commodities, services and environment of all descriptions and to promote standardization in industry and trade.
He further noted that TBS also is mandated under the law to act as the custodian and an overseer of observance of the standards in Tanzania.
During hearing of the application, the TBS had explained that Illuminating Kerosene (IK), Automatic Gas Oil (AGO) and Motor Spirit Premium (MSP) to be distributed in the domestic market will not be marked the effect of which tax will not be realized, hence occasioning loss of the Government Revenues due to tax evasion.
They submitted that the Government will fail to control adulteration and dumping into the local (domestic) market of the tax exempted, smuggled and transit petroleum products.
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It was urged that the general public at large (consumers) will not get value of their money when purchasing petroleum products, as they will not be assured of the quality since fuel marking program is expected to bring efficiency in monitoring and testing the quality of petroleum products from entry points down to the retail stations.
The Government will not achieve its goal of implementing a comprehensive, clear and workable regulatory framework for the development of the country's mid and downstream petroleum sub-sector.
In the impugned decision, the PPAA nullified the tender in question after allowing in part an appeal lodged by M/s Authentix Inc, an American Company, to oppose the TBS decision of granting the tender 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.
