Complaints Review and Remedies Mechanisms under the Ethiopian Public Procurement System: A Critical Review of the State of Law & Selected Practices

Abstract

The Ethiopian Public Procurement & Property Administration Proclamation No. 649/2009 is the primary legislation regulating public procurement procedures, complaint review mechanisms, remedies, administration and disposal of public property. It is supplemented with a Procurement Directive aiming at operationalizing the principles and rules embodied in it. This Public Procurement system has largely modeled itself from the 1994 UNCITRAL Model Law on Procurement of Goods, Construction and Services which features a complaints review mechanism with compulsory hierarchical complaint review mechanisms. The procuring public bodies assume mandatory first instance review jurisdiction on complaints lodged against their own decisions. The complaints review board and the courts are respectively the higher levels of review bodies. It has been 12 years since this law has been put in action and this work aspires to examine and analyze the state of law and practice on suppliers’ complaints, review mechanisms and remedies by drawing relevant insights from the 1994 & 2011 UNCITRAL Model Laws. It is focused on the analysis of the rights of suppliers to file complaints, the complaint review bodies and their scope of competence, the powers of the courts and the award of remedies. It has been established that the Ethiopian public procurement complaints review system is constrained by obstacles that the law opted to include prohibitive clauses on the amenability of major procurement decisions which practically impairs the effectiveness of the review system. The prohibitions on the reviewability of procurement decisions limit the availability of review to be at the later stage of the procurement procedure and result in far fewer remedies. Moreover, the review board’s features of independence and requirements of professionalism are fundamentally compromised. Review jurisdiction by the courts has been very uncertain until the cassation interpretation by the Federal Supreme Court in the Jedaw case made a settling judgment.