ATCL ordered to reinstate roasted cashew nuts bidder

Dar es Salaam. The Public Procurement Appeals Authority (PPAA) has ordered Air Tanzania Company Limited (ATCL) to reinstate a Dar es Salaam firm in a tender for the supply roasted cashew nuts.

The quasi-judicial body has found that the national career has unfairly disqualified Natureripe Kilimanjaro Limited from the tender.

“Since the appellant was unfairly disqualified at preliminary evaluation stage, the appeals authority hereby orders the respondent (ATCL) to reinstate the appellant in the tender process and re-evaluate the tenders in accordance with the law,” said PPAA in a recent decision.

ATCL eliminated Natureripe from the tender process allegedly over failure to attach Tanzania Bureau of Standards (TBS) certificate of quality for roasted cashew nuts. ATCL claimed the firm had instead submitted certificate of quality for raw cashew.

Tender floated

The national carrier floated on May 24, 2022 a tender for supply of roasted cashew nuts for passengers onboard its local and international flights.

The tender was floated through Tanzania National e-procurement System (TANePS) and conducted through National Competitive Tendering method.

Seven bids that were received were evaluated. The evaluation committee finally recommended M/S Royal Cashew Nuts for award of the tender at a contract price of Sh1,935.20 per a 50g-packet subject to negotiations. The contract was to run for three years.

Dispute emerged after ATCL issued a notice of intention to award the tender to Royal Cashew Nuts at a contract price of Sh1,888 per 50g packet.

Natureripe was informed that its tender was disqualified for attaching TBS certificate of quality for raw cashew nuts instead of certificate of quality for roasted cashew nuts.

Natureripe protested the disqualification but unsuccessfully applied for administrative review to ATCL. Dissatisfied, the firm took the matter to PPAA for determination.

Why protest?

At the hearing of the appeal, an advocate who represented Natureripe, Mr Deogratias Ringia, informed the authority that his client has been supplying roasted cashew nuts to the ATCL for the past nine years.

He told the tribunal that when the firm started supply of roasted cashew nuts to the respondent, TBS had not yet developed standards for cashew nuts.

“The appellant in collaboration with TBS developed standards for cashew nuts and was named Cashew kernels which were all roasted,” he submitted.

The counsel further submitted that in all the nine years the appellant had been working with the respondent, it has been submitting TBS certificate of quality which was accepted as valid for supply of roasted cashew nuts.

“There has never been an issue of roasted or raw cashew nuts for all this time as the appellant supplied only roasted cashew nuts,” the counsel contended.

There was no requirement in the tender document that required the bidders to submit TBS certificate of quality for roasted cashew nuts, he further submitted.

“Disqualification of the appellant for the reasons stated in the notice of intention to award is based on an alien criterion which was not provided for in the tender document contrary to Regulation 203 of the Regulations. It is therefore, not justified,” he argued. The lawyer also protested at ATCLS’s decision to award the tender to a bidder whose price was higher than their quoted process.

The proposed successful tenderer’s prices per a 50g packet was Sh1,888 while the appellant’s price for a similar amount was Sh1,852. “There would be no value for money should the award of the tender to the proposed successful tenderer remains undisturbed,” he argued.

The appellant’s also questioned ATCL’s act of asking TBS for clarification on the authenticity of the certificates of quality submitted by the appellant and the proposed bidder.

According to the appellant, there was no need for ATCL to approach TBS for clarification. The request was subjective and was designed to seek answers that the respondent wanted to justify disqualification of the appellant.

To have equal treatment of bidders, the lawyer argued that the respondent ought to have verified the authenticity of certificates submitted by the appellant and the proposed successful tenderer only.

ATCL’s defence

A state attorney who represented ATCL, Mr Benedict Temba, admitted that the company had been working with the complainant for the past nine years but was quick to point out that that did not make it different from other bidders.

“The tender is for supply of roasted cashew nuts, thus it was expected that any diligent tenderer would submit TBS certificate of quality relating to supply of roasted cashew nuts even though it was not explicitly stated so in the tender document,” he contended.

The state lawyer further argued that since the respondent fly within and outside the country, it was imperative to observe international standards of what it supplied to its passengers.

“In complying with safety standards, the respondent required tenderers to submit TBS certificate of quality which would certify that the roasted cashew nuts to be supplied have been approved,” argued the lawyer. The lawyer defended ATCL’s act of asking for verification of Natureripe certificates from TBS, saying the move was necessary to verify the authenticity of the certificate.

It was his contention that the TBS certificate of quality for cashew kernels submitted by Natureripe was ‘very wide.’ “It may be used for supply cashew nuts in different forms like raw, boiled, roasted, spiced, steamed,” he submitted.

On the proportion of prices, the lawyer, while admitting that the price quoted by ATCL was slightly lower than what was quoted by the proposed successful bidder, he argued that the appellant was disqualified at preliminary, as such, its bid did not reach the stage of price comparison.

Procedurement flawed

Deciding on the appeal, the authority said ATCL’s act of disqualifying the appellant on the ground of not submitting certificate of quality for roasted cashew nuts was not justified.

“Since both the appellant and the proposed successful tenderer submitted TBS certificates of quality which can be used to supply roasted cashew nuts; and the fact that the tender documents did not explicitly required tenderers to submit TBS certificate of quality for roasted cashew nuts, the appeal authority finds that the disqualification was not justified,” said the authority.

The authority has ordered ATCL to reinstate the appellant in the tender process and re-evaluate the tenders in accordance with the law.