According to the Law on Public Procurement (LLP), companies may file a complaint to the Public Procurement Commission (PPC) within seven days from the date of the publication of the awarded contract. Upon receipt of the complaint, the contracting authority pauses the continuation of the procurement procedure until a final ruling is given by the PPC within 15 days. The economic operator may file a legal complaint to the Administrative Court against the PPC ruling [1].

The tariff for filing a complaint to the PPC is 0.5% of the value of the fund (VAT excluded) [1]. The complaints system is regularly used, and the annual number of complaints is relatively high (833 complaints in 2014, 1124 in 2015, 1393 in 2016, and 1083 in 2017 [2, 3]. The remedy system is easily accessible to economic operators without discrimination [4].

There are no surveys conducted with businesses that would allow the public or the relevant institutions to know the businesses’ attitudes vis a vis the procurement complaint system. Lack of such data, and the fact that large numbers of defence procurements are conducted outside the provisions of the LLP, and therefore are not eligible to use the complaint system, makes it more difficult to assess.
Overall, the relatively high number of complaints filed to the PPC may suggest that businesses have no fear of retaliation. On the other hand, given that almost 60% of complaints filed relate to relatively small procurement procedures, below 38,000 Euros [1], reports also suggest that companies pay bribes in the process of awarding contracts [2, 3], indicates that the complaint system is only partially used by the businesses and therefore its reliability is questionable. In the Global Competitiveness Report 2017-2018, compared with the previous year, corruption was reported as the second most problematic factor for doing business, after-tax rates [4].

There is a formal complaint mechanism in place. According to Art. 946 of the Code of Civil and Administrative Procedure, the Administrative Court can be called upon by request in case of breach of the obligations of advertising and competitive bidding, which is subject to the award of government contracts and public procurement. The persons authorized to act are those who have an interest in concluding the contract and who are likely to be harmed by the breach, as well as the state representative in the province where the contract is concluded, or to be concluded by the local authority or a local public institution (1), (2). The 2016 law on Public Procurement does not regulate any complaints (3).

The World Bank’s Benchmarking Public Procurement Report of 2017 provides information on the effectiveness of complaints. According to the World Bank, whether a complaint can be filed effectively depends on whether the first tier review body is the same as the second-tier review body. For example, if the company must complain in front of the procuring entity first, it should be ensured that it can appeal to an independent body or a court (1). This is formally the case in Algeria. In the pre-award stage, complaints are filed before the Administrative Court and can be repealed to the High Administrative Court. In the post-award stage, bidders can dispute the provisional award of a contract at the Tenders Board. The decision of the Tender Board can be appealed at the Administrative Court (1). However, in Algeria’s case, the judiciary lacks independence, which reduces effectiveness (2), (3). The World Bank report also notes that the average time to issue a decision takes 150 days in front of a court. In Algeria, it is 60 days which suggests efficiency. However, the report also notes that it often takes longer in reality than legal requirements stipulate (1).

No cases could be found during the research which would allow assessment of this question. Due to the high politicisation of the Algerian court system (1), (2), it seems likely that companies would be discriminated against if they complained, also see the country’s last assessment (4).
The World Bank Public Procurement Report provides some evidence that it is difficult for companies to challenge government decisions. In the report, it notes that it is very difficult to challenge an award procedure before its term. In Algeria, except in cases limited to failure of the obligation of advertising and competitive bidding, it is not common to challenge the award procedure before the publication of the result and the provisional award of the contract (3).

Complaints procedures during procurement and execution are laid out in the 2016 Public Procurement Law, but lack clarity. Chapter IV lays out procedures of administrative impugnation and judicial process (Art. 14-21) and Art. 80 hierarchical appeal procedures on decisions of assessment committees (2). Contractors have the right to terminate a contract when project modifications by the contracting entity represent a reduction of more than 1/5 of the initial project value (Art. 209 – Right to terminate by contractor) and have a right to indemnity (Art. 214) (2). The complaints procedures remain unclear in the case of arms and military procurement contracts that are exempted from the law (1).

Complaints mechanisms do exist in the public procurement law, but there is little information on how they work, what their costs are, and whether they have been used. However, given Angola’s heavy bureaucracy, weak efficiency and accountability of state institutions, the costs are presumably high and the process very lengthy. Generally, Angola’s judiciary lacks independence from political power and has been notoriously misused to silence and prosecute dissidents, investigative journalists and human rights activists (1), (2), (3), (4), (5) (6).

Furthermore, local and international reporting on the 15+2 trial shows that effectiveness and accessibility are stifled (7), (8).

Though it appears likely that companies may fear discrimination in retaliation for complaints, there is no evidence to prove this. It is also the case that companies may be deterred from using complaints mechanisms because they are perceived as costly and inefficient, not necessarily because managers fear retaliation (1).

In accordance with current regulations there is an internal complaint mechanism where companies can challenge the verdict of the evaluation (choice of the bidder, pre-award stage) 3 days after its publication. But to do this they must provide a guarantee of 3% of the amount of the offer. [1] [2] [3] It is unclear if there is a complaints system for malpractice during the procurement itself. [4] [5]

According to Provision 62 E-2016, a losing bidder must submit, within the deadline, their arguments, all relevant paperwork and a guarantee in order to appeal the result of the bid. Decree 1030/2016 further establishes in Articles 73 and 78 that the deadline to appeal is only three days after publication of the results of the bid, and the guarantee to be submitted would be set at 3% of the value of the project. This would require the bidder to commit thousands and potentially tens of thousands of dollars to use the complaints mechanism, rather than a standard processing fee. They also have a very short deadline in which to accomplish all this. The COMPR.AR website offers providers the possibility to contest the pre-adjudication stage, with the respective requirements: documentation and guarantee payment. After consulting the database for the 2016-2019 period for the jurisdiction of the Ministry of Defense, no challenges were observed. [1] [2] According to Dubinski, the audit function and need to pay a guarantee “threatens the revision of the legality and the good exercise of the administrative function and the achievement of the public purpose.” [3]

There is Not Enough Information to score this indicator. There is no evidence regarding companies that believe that their claims result in reprisals in future acquisitions and contracts.

Chapter 6 of the Law on Procurement regulates compliant procedures within procurement cycles. Any person has a right to submit a complaint on the customer, the Assessment Commission, and the Procurement Complaint Responsible Person. The latter is responsible to review and make a resolution on complaints based on the responsibilities granted to the three members of the board by the Law on Procurement and other respective normative acts. The board member reviews the complaints, and within two days upon receiving the complaints the board member notifies the customer to provide all necessary documentation for a resolution. All the involved parties may participate in sessions of the board. The resolution by the board is to be made public no later than twenty days upon receiving the complaint and is compulsive for the parties. The decision by the Complaint Responsible Person can be taken to the court in case any of the parties does not agree with it [1].

The complaints mechanisms have been made accessible and easy to facilitate the process of complaining. Chapter 6 of the “Law on Procurement” provides all the details to submit a complaint. The price is 30,000 AMD which roughly equals to 60 USD. This is a reasonable price for anyone involved in the private sector [1]. The sessions of the board are live broadcasted on the Ministry of Finance’s website [2].

Though the complaint procedures are fairly set up and any person not agreeing to the decision of the Complaints Board on including the company into the “blacklist” can restore his/her right at the court, there is a major problem that the tender may not precisely follow the law, in particular, having unclear technical requirements or with an unnecessary number of restrictions thus limiting competitor participation [3].

The existing legislation does not provide for any hint that companies do not resort to complaint to avoid further discrimination. For the sake of the study, the list of 2017 complaints was explored and only two complaints were identified that involved the MoD [1]. Based on the results of the monitoring of the procurement system, the Corruption Risk Assessment of the Defence Sector Procurement conducted by TIAC suggests that the number of the complaints do not fully reflect reality, as competition participants avoid complaining not to harm their relationship with the customers. Since no data was found proving the statement, that particular paragraph for the assessment was quoted in the study [2]. Under the former government, many companies just remained silent and did not complain when their interests/rights were violated because it was a time consuming and expensive procedure. Moreover, there was no belief that they would succeed [3].

The Department of Defence (DoD) has a formal complaint mechanism available to suppliers, with legal basis in the Government Procurement (Judicial Review) Act 2018 (JR Act) [1]. The JR Act was passed in response to recommendations contained within a Senate Finance and Public Administration References Committee inquiry into Commonwealth procurement procedures [2], which sought an “independent and effective complaints mechanism to ensure appropriate action is taken in a timely and cost-effective manner” [3]. Under the JR Act and Defence policies laid out in the (non-public) Defence Procurement Complaints Scheme – Complaints Management Guide (referred to in the Defence Procurement Policy Manual [4]), (potential) suppliers may submit a complaint that pertains to a breach of the Commonwealth Procurement Rules by DoD in the course of a procurement. The complaint must be investigated impartially by DoD. If no satisfactory remedy can be reached, the company can appeal to the Court to issue an injunction to stop the procurement or award compensation [5]. There is also a formal review mechanism for general complaints that fall outside the scope of the JR Act and can be “made about any aspect of the procurement process and can relate to any procurement activity” [6].

The Defence Procurement Complaints Scheme is easily accessible and readily understandable, with complaints being free to submit. Defence has a plain-language landing page about the Scheme for companies to understand whether their complaint meets the requirements of the Government Procurement (Judicial Review) Act 2018 (JR Act) complaint or whether their complaint is a general complaint; in what form their complaint should be; and the email address to which they can send their complaint; and what to expect after a complaint is submitted [1]. Though statistics on the timeliness of complaint handling are not available, considering the main driving force behind the creation of the JR Act was to create an “independent and effective complaints mechanism to ensure appropriate action is taken in a timely and cost-effective manner” [2], and that the JR Act is meant to work quickly (applications for injunctions, for instance, must be made within 10 days of the company being made aware of the breach) [3], it is likely time- and cost-effective.

The Department of Defence (DoD) has a legal obligation under the Government Procurement (Judicial Review) Act 2018 (JR Act) and the Commonwealth Procurement Rules (CPRs) to provide a complaint review mechanism that is “equitable and non-discriminatory,” which Defence says the Defence Procurement Complaints Scheme is [1]. If Defence engaged in discriminatory behaviour in future tenders by retaliating against companies for complaining, this behaviour would open the door to judicial review, injunctions, and compensation by the Court [2, 3]. However, companies have reported facing retaliation for complaining about DoD procurement practices. In an unpublished 2016 survey conducted by the industry association Australian Business Defence Industry, the question “Do you think that DoD punishes companies for complaining, or raising uncomfortable issues?” was asked. From a temperature scale of 0 meaning “Yes, quite vindictive” to 100 meaning “Not at all”, the average result was 37 [4]. There have been no specific cases of retaliation for reporting procurement malpractice reported in the media [5].

Article 38 of the Law on Public Procurement (1) is “Responsibility of the tender commission”. According to Article 38.1, the chairman and members of the Tender Commission shall act objectively and impartially while performing their duties as defined in this law. According to Article 38.2, if the Tender Commission demonstrates impartiality, each of the plaintiffs may apply to the relevant executive authority or the court. If those authorities confirm that they have been violated during the preparation and conduct of the tender, the results of the tender are cancelled and the procuring entity holds a new tender for that matter. In this case, the chairperson and other members of the commission may not be chairpersons or members of any tender commission for three years. Article 13 of the Law on Public Procurement is the “Contradiction of Interests in Public Procurement”. This article regulates conflicts of interest arising during the tender. Chapter 8 is about the right to complain- there is a set of clear policies about making complaints: According to Article 55 of the Law on Procurement, if the procuring entity fails to perform its duties and as a result, the contractor is damaged, then the contractor has the right to file a complaint per the legislation. Although the legislation allows for complaints, in practice it does not seem possible (2).

The complaints mechanisms available to companies are inefficient. Observations show that most of the companies that have won the tenders are close to officials, and it is inappropriate to think of the importance of any complaint mechanism here (1, 2).

Article 55 of the Law on Procurement (“Right to appeal”) states, if the procuring entity fails to perform its duties and as a result the contractor is damaged, then the contractor has the right to file a complaint in accordance with the legislation (1). Zohrab Ismayil says, if any company complains, the activity of that company may be paralyzed. At best, this company will not be able to participate in future tenders (2).

There is no legal framework or a defined and clear mechanism that provides companies with the right to complain about malpractices and corrupt activities in the procurement process. Every company has its own contract as a binding legal document [1, 2].

As outlined in 68A, there is no legal framework that provides a platform or mechanism for companies to complain [1, 2]. This indicator has therefore been marked ‘Not Applicable’.

As outlined in 68A, there is no legal framework that provides a platform or mechanism for companies to complain [1, 2]. This indicator has therefore been marked ‘Not Applicable’.

On the Ministry of Defence website, the procedure for filing a complaint online via the Grievance Redress System (GRS) is clearly outlined [1]. The DGDP website provides the name and contact number of the key person and appeal authority for filing a complaint via the GRS [2].

The MoD’s GRS [1] is available online, meaning it is easily accessible and can be used free of charge. However, there is ample scope to make the system user-friendly. An analysis of the monthly GRS reports sent by the MoD to the Cabinet Division between January 2018 and February 2021 [1] reveals that there is no information available regarding complaints filed or disposed of regarding malpractice in procurement.

The absence of any complaints of malpractice in procurement during the last 2 years [2] indicates either that the official GRS system is not effective for companies or that companies prefer to settle disputes unofficially, out of a perceived fear of retaliation by the authorities concerned. However, there is insufficient information as to whether companies believe that they would be discriminated against after lodging a complaint. As such, this indicator is not scored and is marked ‘Not Enough Information’.

Complaints related to the contract award process may be filed (and are regularly filed) with the Conseil d’Etat (highest administrative court) [1]. Complaints related to the execution of contracts may be filed with civil courts. This is a very standard process.

Before that, complaints may be filed with the procurement department of the Belgian Defence, and these often lead to meetings to explain the basis of decisions [2].

Court proceedings in Belgium are relatively reasonably priced and are therefore regularly used in public procurement matters [1, 2, 3]. There are long waiting times in Belgian courts.

This type of discrimintation is forbidden by the law on public procurement [1]. No evidence was found of contractors being discriminated after genuine complaints [2].

The Public Procurement Law states dissatisfied bidders who suspect irregularities or malpractice in the bidding process may appeal to the body responsible for making decisions on the results of the competition (the contracting authority) [1, 2]. Subsequently, the appeal may be filed with the Procurement Review Body (PRB) [1]. The companies, dissatisfied bidders, are also allowed to initiate court proceedings with regards to potential irregularities or malpractice in the bidding process [3].

The fees for bidders have been raised significantly in the new PPL adopted in 2014, which did not lead to a general decrease in the number of appeals and discouraged bidders from appealing [1]. The issue of high fees (from 500,00 KM for procurement to 50,000,00 BAM to 10,000,000 BAM for procurement over BAM 9,000,000.00) concerning the economic situation in Bosnia and Herzegovina and the position of small and middle enterprises, which were introduced with the main reason for discouraging so-called professional complainants, respectively business entities that file complaints in a proceeding to extend cooperation with contracting authority, or however, obstruction of the procedure, did not solve the problem of a large number of complaints in the country [1, 2].
According to a Support for Improvement in Governance and Management (SIGMA) report from 2017, the mechanisms are broadly compliant with the European Union Remedies Directive with two issues: the first being, the time limits for bringing appeals before the Procurement Review Body (PRB) is five days, and second, the deadline for rectifying the deficiencies in the appeal (three days followed by a possible dismissal of the appeal) are both deemed too short. The report concludes that these requirements may discourage prospective applicants from challenging the decisions of contracting authorities before the PRB [3].

According to the government reviewer, the PPL has set deadlines and fees and the Managing Board (MB) cannot influence this. But this still results in a large number of complaints that are increasing year by year. The MB always respects the decisions of the PRB and acts in accordance with them. This raises the issue of complaints from unjustified tenderers that cause significant damage to the MA in terms of irregular contracting of goods/services. The bidders file complaints, but when it comes to the time of payment the fees are cancelled. The PPL did not stipulate that the bidders could be punished because in this way they delay the procurement process and put the MB at a disadvantage (contracting food, energy). There must be a two-way mechanism because if only bidders can complain, and without any sanctions, if the complaints are not justified, it puts the Managing Board at a disadvantage because the complaints are not always justified.

The PPL does not contain specific provisions protecting companies which had filed appeals from discrimination in future procurement, although Article 3 does enshrine a general principle of non-discrimination of bidders in any procurement process [1, 2, 3]. It is worth pointing out that the possibilities to retaliate are practically inexistent. The evidence indicates that the legal entities that filed complaints in certain procurement procedures have concluded contracts with MoD following the acceptance of their complaints or through their selection in other procurement procedures [3].

Section 77 of the PPADB Act provides as follows: claim for compensation for contravention of legal provisions (1) a person who is aggrieved by any decision of the Board or if any of its committees, according to matters arising under section 103 of the Act, may-
(a) submit a complaint by following the review procedures of the Board, set out in regulation 78; and
(b) if that person is dissatisfied with the final decision reached when the review procedures of the Board under paragraph (a) are exhausted, apply to the Independent Committee for a review of the decision.
(2) The following matters shall not be subject to the review referred to in subregulation:
(a) the selection of a method of procurement;
(b) the choice of an evaluation procedure for such procurement;
(c) a decision by the Board or its committee to reject all bids; and
(d) a refusal by the procuring entity to respond to an unsolicited offer of an interest to bid [1,2]. This is both an internal and external processes, depending on the route that the aggrieved party opts for.

As explained in 68A, the PPADB and the PPADB Manual have a complaint mechanism [1]. However, there are no published cases by PPADB, which is the institution responsible for administering procurement disputes to measure their effectivesness [2]. In regards to accessibility, the PAPDB Act and the Botswana Constitution ensure easy access to the complaints mechanism for all aggrieved parties [1,2]. The processes and the decisions of the complaints mechanism are also published online on the PPADB website. The cost of the complaints mechanism is not disclosed.

There is not enough information to score this indicator, as there are no reported cases of aggrieved companies that fear future discrimnation should they challenge procurement processes on the basis of malpractice [1,2]

According to the Transparency Report of the Ministry of Defence, Article 109 of Public Procurement Law 8.666/93 regulates administrative appeals. It establishes deadlines for making those appeals within the process of procurement, asserting the right of companies to present demands or respond to decisions of the public administration. In court, the legislation that regulates this communication channel is Law 12.016/2009, which defines the means to open judicial injunctions [1, 2].

The assessor found no evidence of companies that have attempted to complain about the procurements processes, which might indicate a lack of transparency of the whole procurement and contract execution cycle [1, 2]. Alternatively, the lack of complaints may indicate that the procurement procedures are being handled correctly. Given the lack of available information on this issue, it is not possible to score this indicator and, as such, it is marked ‘Not Enough Information’.

Since there was no evidence that companies have attempted to complain about procurements processes, there was also no evidence of retaliation [1, 2]. Given the lack of available information on this issue, it is not possible to score this indicator and, as such, it is marked ‘Not Enough Information’.

Article 6 of Law N° 039 (2016) does not apply to contracts for works, supplies and services and public service delegations, where they relate to the needs of defence and national security that require secrecy or for which protection essential interests of the State is incompatible with publicity measures. A decree issued by the Council of Ministers specifies the nature and modalities acquisition of the goods and services concerned by this exclusion (1), (2).

According to Article 38 of Law N° 039 (2016) “bidders and contractors can introduce their complaints before the contracting authority against tenders documents and the decisions made during the procurement process.” Article 39 of the above law allows bidders and contractors to carry out their complaints to a non-court body” as well. The other option opened to bidders and contractors lies under Article 43, which states that “in case the non-court body did not issue a satisfactory decision, the one who thinks so, can take the case to whether the appropriate administrative court or to an arbitration court”. Indeed, complaints and other procurement issues not covered by Law N° 039, are taken care of by Decree N° 0049 as usual. Therefore, procurement complains mechanisms are available. But, all the issue remains how to use them without fear. Therefore, companies get no opportunity to complain about perceived malpractices in procurement (1), (2).

Article 6 of Law N° 039 (2016) does not apply to contracts for works, supplies and services and public service delegations, where they relate to the needs of defence and national security that require secrecy or for which protection essential interests of the State is incompatible with publicity measures. A decree issued by the Council of Ministers specifies the nature and modalities acquisition of the goods and services concerned by this exclusion (1), (2).

For the sake of not being blacklisted, companies rarely use the available complain mechanisms. Often times complains from bidding/ contracting companies do not succeed, as corruption is widespread in all sectors of the economy, including the public sector. According to United States Department of State (2017), “the law provides criminal penalties for corruption by officials, but the government did not implement the law effectively, and officials often engaged in corrupt practices with impunity.” Therefore, because of the high level of corruption, the complain mechanisms available for bidding / contracting companies usually do not succeed, and is often time-consuming as well (1), (2), (3).

Corruption is widespread in Burkina Faso, and according to the United States Department of State (2017), “local NGOs criticized what they called the overwhelming corruption of senior civil servants” (1). Obviously, this is not in favour of complaining companies, who fear not being approved for future contracts. It has often been reported that stakeholders involved in public procurement are corrupted, and that procurement decision often depends on the allocation of bribes (1). According to the 2015 Burkina Faso Government/ Defence Anti-Corruption Index, “Burkina Faso is very poor on whistleblower legislation, which poses hindrance to the fight against corruption” (2). During the interview session with the Executive Secretary of the REN-LAC, the Interviewee said that its organization was once approached by a whistleblower, who explained that he made a bid for works in the defence ministry, and did not get approved because the procurement process was corrupted” (3).

The Public Procurement Code 2018 clearly lays out formal mechanisms to allow companies to complain about perceived malpractice in procurement. These mechanisms include an internal complaints and appeal system and the ability to launch a complaint with the Public Procurement Authority (Articles 170-172) [1]. It should be noted, however, that defence and security procurement is exempt from the provisions of the Procurement Code (Articles 4 and 71) [1], and there is no known separate complaints mechanism covering defence and security procurement.

No known dispute mechanism exists for defence and security procurement. Therefore, this indicator has been marked Not Applicable.

No known dispute mechanism exists for defence and security procurement. Therefore, this indicator has been marked Not Applicable.

The Canadian International Trade Tribunal (CITT) is the central mechanism for companies to complain about perceived malpractice in procurement. [1] The CITT has been granted this authority under the AIT. [2] For lower value procurement initiaitives (valued below CAD25,300 for goods and CAD101,100 for services), the Office of the Procurement Ombudsman provides another key mechanism for complaints. [3]

There are no charges associated with filing complaints with the Office of the Procurement Ombudsman and decisions are intended to be reached (if the case is deemed worth investigating) within 120 working days. [1][2] According to an OECD report, “Between May 2008 and March 2011, the Office of the Procurement Ombudsman handled more than 1,200 inquiries and complaints and conducted 6 investigations into contract award issues. The Office dealt with 21 requests for an alternative dispute resolution process for contractual disputes and conducted 12 procurement practice reviews which involved 26 different federal government departments and agencies.” [3] Annual reports by the Office of the Procurement Ombudsman are publicly available. [4]

According to the Office of the Procurement Ombudsman, “When you come to us with federal contracting issues, and have not yet filed a written complaint, we will not contact the department or disclose your name / company name without your written permission. Once you have filed a written complaint, we will determine within 10 working days whether or not we can review the complaint. We are required to notify the complainant and department of our decision. We are also required to provide the department with a copy of the complaint document(s) whether or not we review the complaint.” [1] This means that information is not provided to the federal department in question unless a formal complaint dispute is being pursued, which reduces the risk for retaliation. Furthermore, most contracts are awarded based on factors including: cost, stability of bidding firm, and ability to meet the (technical) requirements of the notice of tender. [2] These factors significantly limit the ability for federal departments to retaliate against past complaints.

Formal procedures and mechanisms to complain about perceived malpractice in procurement in the defence sector are formally established; however, their functioning and guarantees are limited. For instance, the law on administrative contracts and supply in the public sector (Law 19.886) created a Public Procurement Court (Tribunal de Contratación Pública) (TCP) to rule in cases of illegal or arbitrary acts and omissions that occurred in administrative procedures when contracting with public entities (Art. 24) [1]. In that way, any legal person with concerns about the procedures can file demands, and the TCP may decree, by reasoned decision, the suspension of the procedure in which the action falls. However, the TCP does not operate with procurements made through the other mechanisms specified in the special regulations on acquisitions and disposals in the armed forces [2, 3]. According to this framework, bodies in the armed forces can define procedures and policies through special regulations (Art. 4), which have operated in acquisitions via private bidding and direct contract. For instance, the Handbook on Acquisition of the Chilean Army incorporates mechanisms for complaining, but it does not define wrongdoing or bad practices [4, 5].

Complaint mechanisms are available for procurement and contracting procedures that operate through the public procurement system ChileCompra. In this system, companies and individuals can request the Public Procurement Court (TCP) to suspend procedures in cases of illegal or arbitrary acts or omissions (Law 19.886 Art. 24) [1]. According to the TCP, from 2010 to 2016, five per cent of the accusations of impugnment corresponded to entities within the armed and security forces [2]. However, there is no evidence that complaint mechanisms have worked efficiently, particularly in cases in which the law allows exceptions for acquisitions and contracting in the defence and security sector qualified as reserved and secrets (Art. 3). There is no evidence that the complaints mechanism involves a monetary burden.

There is no evidence of companies that have been discriminated against or barred from procurements because of genuine complaints. Complaint mechanisms for procurement and contracting seem to work, at least for acquisitions made through the public procurement system ChileCompra [1]. There might be disincentives to complain about acquisitions in war materials, where the market is highly concentrated in very few suppliers. For instance, in the state-owned firearms manufacturer Fábricas y Maestranzas del Ejército (FAMAE), 90.6% of trade transactions are made with the army [2]. However, there is no evidence of a generalised expectation of retaliation for complaining.

There are detailed relevant regulations [1] and, at least on paper, an institutionalised and straightforward complaints mechanism that is easily accessible online. [2,3] The mechanism, however, is internal, without any external oversight.

There is no publicly available information on the use of complaint mechanisms in defence procurement, although the mechanisms are in place. As such, this indicator is marked ‘Not Enough Information’.

There are no known cases of retaliation following complaints in defence procurement processes that have emerged in the Chinese or English press. It is very unlikely that companies would choose to make their grievances public though, given that there are no external checks and balances against retaliations. There is no transparency in this regard. Given that there is very little evidence regarding this issue, this indicator cannot be scored and is marked ‘Not Enough Information’.

The mechanisms that allow companies to submit complaints about bad practices in hiring and procurement are not clearly identifiable in the defence sector procurement manual. Article 76 of Law 1474 of 2011, [1] however, includes as a mechanism to prevent, investigate, and sanction acts of corruption in public management. The offices of complaints, suggestions, and complaints has the function of receiving, processing, and resolving citizen claims. The office is in charge of the internal control office that will answer the complaints through internal research and coordination processes with other offices and units in order to initiate any investigations. Such a process can be done through sending an email, direct filing of the complaint at the internal control office, or using the Ministry of Defence’s Line of Honour. Interviewee 7 reports that the internal control office receives complaints from contractors and complaints about the hiring and procurement processes. [3] However, there is no evidence of specific regulations for contractors to make claims on issues of irregularities.

On the websites of the Military Forces and the Police, and of the Ministry of Defence, there are clear and easily accessible links to make complaints. There is also the Ministry of Defence hotline, email addresses, and a Ministry of Defence app on which complaints can be made. These complaints are directed to the control offices who classify and respond to claims. [1] With regard to these complaint processes, the OECD recommends that the Colombian government manage complaints in a fair, swift, and transparent manner, through the implementation of effective avenues for the challenge of public procurement rulings, aimed at correcting defects, preventing unlawful conduct, and generating trust among bidders, including foreign competitors, in the integrity and equanimity of the public procurement system. [2] There are not enough sources available regarding the regular use of these mechanisms and there are still weaknesses in the processes of efficiency and accessibility of contractors. These elements are not found in the procurement manual or other regulations.

Article 5 of Law 80 of 1993 defines the rights and duties of contractors, [1] stipulating that contractors may go to the authorities in order to obtain protection for the rights derived from the contract and sanction for those who violate them. Companies have legal protection for the generation of complaints and claims, and access to different reporting channels such as the Ministry of Defence’s Line of Honour 163, the Ministry’s web portal, the National Police website, or by email or through the Ministry’s app. There is insufficient evidence to say whether companies believe that they will not face discrimination in future procurement and contracting because of reporting. In any case, the OECD recommends the generation of an effective complaint system with independent and specific auditing and appropriate redress mechanisms. [2] Since there is insufficient information this indicator is not scored and is marked ‘Not Enough Information.’

Both Decree No. 2009-260 on the functioning of the ANRMP and Decree No. 2009-259 (Code of Public Procurement) provide for complaint mechanisms for bidding companies. As per Decree No. 2009-260 of 6 August 2009 on the organization and operations of the ANRMP (Portant Organisation et Fonctionnement de l’ANRMP), the ANRMP is tasked with settling and following up on disputes that arise in public procurement (Article 3). In addition, there is a specialized unit (cellule) within the ANRMP that is tasked with recourse and sanctions (Cellule Recours et Sanctions, CRS), which could serve as a mechanism for companies to complain about perceived malpractice (Article 12) (1).

Decree No. 2009-259, the Code of Procurement of 06 August 2009 (Portant Code des marchés publics) also provides bidding companies with several methods through which to lodge complaints about a public procurement process (2).

Ultimately, bidding companies also have recourse to the sub-regional OHADA (Organization for the Harmonization of Business Law in Africa) if the ANRMP Recourse and Sanctions Unit fails to rule on cases of perceived malpractice. The OHADA regulations allow companies to take the case to a national court of law.

Articles referenced in the above paragraphs from the Code of Public Procurement states:

Article 3: The Regulatory Authority is tasked with public procurement and public service, including: (1)
– settling disputes arising from the award and execution of public contracts and public service delegations which are the subject of actions brought before it by participants in the public procurement procedure;
– following up on decisions on the settlement of disputes in public procurement;

Article 12: The Regulatory Authority is structured in three (3) specialized units: (1)
– the Studies and Policy Definition Unit
– the Recourse and Sanctions Unit
– the Independent Audits Unit

Article 16: The Recourse and Sanctions Unit is tasked with, among others: (1)
– issuing decisions on disputes arising from the awarding, execution, regulation, control and regulation of public contracts and public service agreements under the conditions referred to in Article 167 of the rules of the public markets;
– imposing sanctions for breach of public procurement regulations and public service agreements against candidates, tenderers, recipients or holders of public contracts or public service agreements, in accordance with the terms and conditions laid down in Articles 184 to 186 of the Code des Marches Publics;
– referring any irregularities found in any public procurement procedure or public service agreement to any contracting authority and, where appropriate, inform the competent administrative or judicial institution.

This indicator has not been assigned a score due to insufficient information or evidence.

There are recent (2015-2016) cases in which the ANRMP’s Recourse and Sanctions Unit issued rulings concerning perceived malpractice in the procurement process. However, there was no information on how expensive this type of complaint mechanism is for bidding companies. There is recent (2015-2016) evidence on the ANRMP website attesting to the effectiveness of the ANRMP’s Recourse and Sanctions Unit (Cellule Recours et Sanctions, CRS). However, none of the 10 rulings by the ANRMP Unit involved a public tender with the Ministry of Defence. Due to the confidentiality of defence procurement, as per Article 8 of the 2009 Code of Public Procurement, none of the rulings by the CRS on the ANRMP website involves public tenders with the Ministry of Defence (1). For example, Ruling No. 043/2015/ANRMP/CRS of December 29, 2015, illustrates how a bidding company (KINAN) submitted its bid for a public tender set up by a state agency and later accused the contracting agency of irregularities in the procurement process regarding the supply and installation of furniture, computer equipment, office equipment and various equipment for a professional training centre (Lycée Odienné Professional). Details of the ruling can be downloaded as a pdf on the ANRMP website, along with 9 other rulings (2). Given the recent cases of CRS rulings uploaded to the ANRMP website, it can be said that the mechanism is moderately effective for public procurement. Still, none of the CRS rulings concerned defence contracts.

The activities of the ANRMP’s Recourse and Sanctions Unit (CRS), which has emboldened companies in Côte d’Ivoire to use it as a vehicle of complaints about cases of perceived malpractice in public procurement. Although the information is dated (13 March 2013), a text written by an Ivorian lawyer (Vincent Bile) was uploaded to the ANRMP website in which he addressed the fact that thanks to the 2009 Code of Public Procurement and Decree Decree No. 2009-260on the organization and operations of the ANRMP, a greater number of companies involved in public procurement in Côte d’Ivoire have gone through the ANRMP’s Recourse and Sanctions Unit (CRS) to denounce cases of malpractice. See the excerpt below:

“If litigation related to public tenders in Côte d’Ivoire does not yet know yet the same frenzy as in Senegal… Ivorian companies that previously did not dare complain for fear of reprisals, are coming out more and more of their torpor to lodge formal complaints with the Recourse and Sanctions Unit (CRS) of the ANRMP. Of only three (3) decisions rendered in 2010 and fourteen (14) decisions in 2011, the CRS has rendered thirty-four (34) decisions in 2012, not to mention that many disputes were dismissed in the context of the preliminary appeals filed with the courts” (1).

An article in Côte d’Ivoire Economie on February 25, 2014, described the change in mentality among companies bidding for public tenders since the creation of the ANRMP in 2009. The author, Germain Tanoh, stated that that they are willing to lodge complaints via the CRS that can lead to the Administrative Chamber of the Supreme Court to settle disputes arising from public procurement. Previously, there was no unit like the CRS that was able to forward cases to the national courts (2). The article states:

“From now on, the regulations in the ANRMP provide companies vying for a public tender in the Ivorian system of the public procurement with the tools to bypass societal evils (corruption, favoritism, fraud, abuse of position, collusion), not only to assert their right in the event of a decision that grieves them, but also to denounce the unethical behavior of the actors involved in public procurement” (2).

Analysts covering the CRS cases describe scenario before and after in which companies have lost their fear of retaliation since the ANRMP was set up.

Formal complaint mechanisms are in place and written into the law on public tenders [1]. The law on the Danish Complaints Board for Public Procurement (“Lov om Klagenævnet for Udbud”) states that everyone with a legal interest can make a complaint to the Board [2]. Further, cases may be presented to the court of law and so may the decisions on complaints reached by the Danish Complaints Board for Public Procurement [3]. As a source of law, the Complaints Board’s decision are subordinate to judgments from the Danish court of law and the EU Court of Justice [4].

Complaints brought before the Danish Complaints Board for Public Procurement are subject to a fee of 10.000-20.000 DKK [1]. The Complaints Board may order the unsuccessful party to fully or partly cover the other party’s costs for the complaints procedure, but as a general rule costs are limited to 75.000 DKK, though exemptions are sometimes made [2]. There is no formalised process for filing a complaint but, according to the official guidelines, the process is simple: the complaint, written in Danish and specifying in precise terms the infingements allegedly committed by the contracting authority, is sent to the Board via e-mail along with two hard copies [3]. The Complaints Board has an average case processing time of 2.8 months, which compared to other complaints board must be considered to be very low [4]. The annual report of the Complaints Board indicates that this complaint mechanism is regularly used: between 2016-2020, c. 29 complaints were filed against DALO [5].

Assessment of this question is uncertain because no data specifically on this issue is available. However, judging by other factors, discrimination in future cases appears not to be likely to prevent companies from filing complaints: first, the Board is regularly used (both generally but also specifically in cases of defence procurement) and second, 34% of the findings were for the complainant [1]. In 2018, 2 out of 44 of the Complaints Board’s decisions were brought before the courts of law [2]. The annual reports of the Board does not contain any indication that the anticipation of future discrimination is an issue for complainants [1, 2].

According to Article 5 of the Public Authorities’ Contracts law, there is a special unit in the Ministry of Finance entrusted with receiving complaints regarding violations or breaches of procurement contracts (1). Article 91 gives the contractor the right to go to court or resort to arbitration given the parties agree to that in the contract if they allege that the public authority has breached one or more of its obligations (1). The public procurement portal (2) also has a hotline and a complaints section (for subscribed users). As most of the suppliers are closed contract and single-sourced, complaints are more informal, as it is not expensive and can be managed informally too (3), (4).

Options for contractors to complain are through either regular judiciary arbitration or the less formal complaints mechanisms. Court cases in Egypt are usually slow, expensive and inefficient (1). Arbitration, even if more effective and faster, is also expensive. Consequently, informal channels are used to complain and solve any problems (2), (3). However, there is no evidence that these less formal mechanisms for complaining are effective and impartial.

Given the current political climate characterized by military authoritarianism (1), it is very likely that in procurement for the defence sector, companies fear retaliation if they file complaints or sue institutions in the defence sector.

Complaints by companies can be filed with the Appeal Committee of the Ministry of Finance. [1] They can also be submitted to the Estonian Competition Authority [2] that bases its activities on the Competition Act. [3] The Anti-Corruption Committee [4] of the Riigikogu exercises supervision over anti-corruption measures and discusses potential incidents of corruption involving officials. And lastly, companies can turn to the courts in cases where the breach of contract is covered by the Obligations Act. [5]

There is plenty of evidence of complaint mechanisms being regularly used. For example, the Ministry of Finance publishes the statistics on complaints annually. [1] In 2017, one third of appeals were approved and half of appeals were denied by the Committee. Appeals are also published in the E-Procurement Registry. [2] However, there is evidence that the appeal procedure may by complicated and confusing for the companies and therefore many appeals are not submitted. [3] From the beginning of 2018, there is a possibility to appeal after the contract has entered into force, not just before. Also, the amount of the state fee which needs to be paid to use the appeal procedure is reasonable (640 euros/1,280 euros). [4]

There are cases when the same companies submit complaints more than once, which could be an indication of trust in the system. [1] If the Appeal Committee does not make a satisfying decision from the company’s perspective, there is an option of turning to the courts. The court system is widely perceived as trustworthy in Estonia. [2] There is no further evidence of companies being afraid of being discriminated against in future procurements in case of complaints.

The Act on Public Defence and Security Procurement, chapter 11, section 74 states: A contracting unit must provide written decisions on matters that influence the position of candidates and offerors as well as on the end result of the bidding process [1]. The decisions need to be justified as well. Chapter 11, section 76: the contracting unit must attach to its decisions information about the appealing process indicating how to appeal to the Market Court and how to demand for a correction from the contracting unit. The correction procedure is further specified in chapter 13 of the Act and the Market Court procedure in chapter 15 of the Act. [1]. Similar statuses can be found from the Act on Public Procurement and User Agreements, chapter 14, sections 123 and 126. [2]

Courts provide redress. However, the Finnish court system has problems with cases running over many years, so while process might not be costly, the cost associated with lawyers and lost business may need to be taken into account. Additionally, if an individual goes against the government, the government has no problems paying for ongoing litigation for years, when a private citizen obviously is likely not have the same resources.

The ongoing proceedings in the Market Court and its earlier decisions are available on the court’s website. [1,2] According to a presentation given by the Head of Procurement in the Defence Forces’ HQ Logistics department, 10 defence procurement cases were taken to the Market Court in 2015 (of which 90 % did not lead into further procedures). [3]

Public procurement legislation prevents future discrimination on the basis that a company has previously complained to the Market Court. Exclusion can only be carried out on the basis of the conditions specified in Act on Public Defence and Security Procurement and Act on Public Procurement and User Agreements. [1, 2].

Companies can complain to the administrative court. This right is codified by articles L 551-1 and L 551-2 of the Administrative Justice Code. [1]
The administrative judge can suspend the procurement process, cancel the contract, and impose a financial fine on the buyer (the Ministry of Defence) for negligence, [2] as has happened before: a company managed to have the procurement cancelled for irregularity [3] and the Ministry of Defence found guilty.
However, as seen in the ICS case, companies involved in defence and security tenders tend to use informal communication channels to voice their complaints anonymously for fear of being discriminated against in other procurement processes with the Ministry: anonymous letters with information about the favouritism scheme were sent to the PNF judge and the press, [4] after the ministry expressed a rather hostile reaction to their first complaint.

Not a substantial number of complaints being filed in front of the administrative justice was found, despite this mechanism being free (apart from the company’s lawyers fees) and effective.
It is notable that when it comes to defence and security procurements in particular, contracts can be allocated without publicity and without competition, according to decree n°2016-361 of March 25, 2016 on defence and security procurements. [1] [2] This lack of transparency could explain the limited number of complaints, competitors not always having all the information to assess whether their company suffered prejudice.

French company Verney-Carron openly spoke out in the media [1] about its dissatisfaction on how bidding for the contract for precision rifles for the French army worked (a company with under 50 million of revenue cannot compete in the bid, according to EU trade laws). That vocal stance tends to show an absence of fear of retaliation from the Ministry.
However, the recent ICS case, currently investigated by the PNF, shows that when a company – DAHER – complained against contracts always being won by the same company – ICS – despite being twice as expensive, the reaction of the procurement officials within the Ministry of Defence was not positive: “The tone of this letter is clearly aggressive and will broadly stretch the relationship with this company which regularly applies for many contracts of the Ministry of Defence “, was the alleged response of the high commanding officer in charge of this procurement, according to emails investigative journalist Geoffrey Livolsi had access to. [2] The author confirmed in an interview [3] that the handful of companies who are sent contract information for tenders by the Ministry of Defence fear they will be discriminated against if they speak up about corrupt behaviour in the procurement process.

Formal mechanisms are in place to allow companies to complain about perceived malpractice in procurement. This may include both a court process and an internal complaints mechanism [1,2]. For example, there are several mechanisms in place to allow companies to complain about perceived malpractice. The most important is that companies can, according to Articles 155ff and 171ff of the Act against Restraints of Competition (GWB), complain about decisions made by the responsible agency [3]. In the case of defence procurement, the Federal Office of Bundeswehr Equipment, Information Technology and In-Service Support (BAAINBw) is the responsible agency [4]. Additionally, in accordance with the Federal Government Directive Concerning the Prevention of Anti-Corruption and the derived documents within the Federal Ministry of Defence, the BAAINBw has, because of its size, a dedicated contact person for corruption prevention. It is also possible to send anonymous information to this contact person [5].

The complaints mechanisms available to companies seem to be efficient and reasonably priced, and are regularly used [1,2].

Reprimands (the first internal step to be taken by bidders who feel that they were placed at a disadvantage and/or that their rights were violated in the context of an invitation to tender) are a regular occurrence in day-to-day contract awarding. Bidders may also proceed with review procedures (the second step) before the public procurement tribunals at the Federal Cartel Office and complaints procedures (the third step) before the Düsseldorf Higher Regional Court. Information on these procedures is included in publicly available armaments reports. The non-discrimination requirement in public procurement law (see Section 97(2) of the GWB) prohibits public contracting authorities from discriminating against bidders in award procedures [1,2].

However, some cases do indicate a certain level of retaliation. For instance, Heckler & Koch submitted a formal complaint against the BMVg in Koblenz regional court in 2016 after it claimed that H&K rifles were defective, which the court rejected [3]. Then, in 2020, H&K lost out on a major armament contract for the Bundeswehr, despite it submitting the more economical bid and its rifles performing well in tests. The contract went instead to a much smaller supplier owned by a UAE-based conglomerate. This supplier, C.G. Haenel, was then excluded post award after patent-related allegations undermined its bid [4].

Formal mechanisms are in place for companies that feel cheated to seek compensation (1), (2). There are formal dispute mechanisms set by the PPA, Section 79 of the Public Procurement Act (2003) provides a review process, with internal disputes as a first option, followed by the aforementioned complaints panel, and finally legal action as a last resort (3).

The complaints mechanism looks easily accessible and effective. However, what is on paper obscures a very difficult path or avenue to pursue. Effectiveness of these mechanisms is severely hampered by the nature of defence contractors seeking to ensure continued business with the GAF. An informal status of persona non grata for any complaining company appears to be the norm. (1), (2), (3), (4).

Companies believe that they will be unfairly targeted from future procurement and therefore they often resort to bribery to win contracts and if they lose any bid, they may try again (1), (2), (3).

Formal mechanisms are in place to allow companies to complain about perceived malpractice in procurement. These includes both a court process and an internal complaints mechanism [1]. According to Article 7 of Law 3978/2011, “for the examination of the preliminary appeals according to the provisions of Article 90, the competence of the Appeals Evaluation Committee is responsible, which is three or five members and its members are different from the members of the other committees” [3].

The complaints mechanisms available to companies are efficient and reasonably priced and are regularly used [1]. There were approximately 75 complaints in the defence sector in 2019 [2]. In 2018, there were 56 complaints in the defence sector [3].

For genuine (non-malicious) complaints, companies believe that they will not be discriminated against in future procurements [1, 2].

The most important military procurements are not subject to open public tenders. In case of those procurements that are subject of the tender process, there is an opportunity for official appeal at the Procurement Council [1]. All information on complaint mechanisms and cases are available on the website of the Public Procurement Authority. There is no information on internal or informal complaint mechanisms.

The effectiveness and accessibility of open tenders are high. However, in volume and importance, those bids are marginal compared to the major defence procurements where there is no complaint mechanism available [1]. In most cases, data suggest there is a single bidder, therefore the number of complaints is relatively low [2].
Still, in case of an appeal, the whole process of appeal and complaints can be followed through the online system of the Public Procurement Authority, that is professionally evaluating cases [3] The Public Procurement Authority’s website states appeals do not incur additional costs from the companies [4].

Source 6 highlighted that companies rarely use the Public Procurement Authority as they are afraid that they will be excluded from future business. However, big industrial players do not use official channels as important procurements are decided at the political level without a public tender [1].

Different mechanisms exist for cases which fall inside of delegated powers of SHQs/IDS/CGHQ and those that fall outside of delegated powers. A vendor, having any complaint should raise the complaint within two weeks of receipt of related communication or information from the concerned authorities. Such complaints mainly relate to procedural issues at different stages.

As per the guidelines:

“19.1 Complaints received in the Ministry of Defence in respect of cases falling under delegated powers of SHQs/IDS/CGHQ, will be handled in the following manner:-

(i) Acquisition Wing will forward the complaints to respective CFAs in the SHQ/IDS/CGHQ.
(ii) The CFA will direct the concerned Directorate (of SHQ/IDS/CGHQ as the case may be) to enquire and submit a factual report on the complaint. The CFA will get the factual report examined and dispose off the complaint by taking
appropriate action after having obtained opinion of Ombudsmen wherever so required.

19.2. Complaints received directly by SHQs/IDS/CGHQ will be examined within 30 days of receipt of complaint to the extent possible and disposed off. Complaints by competing vendors shall be disposed off as at Paras 15, 16 and 17 above.

19.3. Complaints related to the procurement cases other than those under delegated powers will be processed in the following manner:-

(i) Complaints relating to the capital acquisition will be marked to the Acqn Wing for further processing. In the Acqn Wing, the complaints related to technical aspects, i.e., RFP, TEC, FET etc will be handled by respective TMs, and those pertaining to other procurement stage(s) after FET, i.e., CNC stage, will be handled by respective JS&AMs.
(ii) The TMs/JS&AMs, as the case may be, will forward the complaint to the concerned SHQ for comments/factual report. The concerned SHQ will get the complaint examined and, with the approval of PSO, forward its comments/recommendations to the concerned TM/JS&AM, as the case may be. All the above activities at SHQ will be completed within 30 days of receipt of
complaint.
(iii) The TM/JS&AM will further examine/analyse the comments forwarded by SHQ. They may obtain views/advice of the concerned FMs in MoD (Finance), wherever so required, and thereafter will submit the file with their recommendations for approval of RM. Complaints by competing vendors shall
be disposed off as per procedure given at Para 16 above.
(iv) Complaints received from public representatives/VIPs will also be examined and processed in a similar manner and, in addition to the acknowledgement as per Appendix ‘A’, a reply to the complainant would also be submitted for consideration of Defence Minister/Defence Secretary, as the case may be,
as required under the procedure for the disposal of VIP references
(v) All the above activities will be generally completed within a period of 60 days of receipt of complaint.” [1][2] This is then followed by addressal by Ombudsmen.

In 2012, two defence contractors moved the High Court against the ten year ban on them on participating in any tender issued by the Ordnance Factory Board (OFB) [3].

The above indicates that there are comprehensive complaint mechanisms in place.

The mechanisms seem to be accessible and cost effective. A vendor is required to file a complaint within two weeks, leaving a short window. The duration of the complaint process could be a concern as would the conflict of interest arising from involvement of the concerned directorate in the complaints process, ensuring uniformity between the CFA and Ombudsmen and adherence to timeframes [1][2][3].

Under Section VI (23) of the guidelines for handling complaints in DPP, protection will be given to whistleblowers as per CVC guidelines [1]. As alluded to earlier, there is evidence of companies successfully complaining through the formal mechanisms [2]. However, it is plausible that there can be some sort of retaliation or hostility [3].

The formal mechanism used by supplier companies to complain about perceived malpractice in procurement processes is stipulated in Minister of Defence Regulation No. 17/2014 [1] for weapon systems procurement and Regulation of the National Public Procurement Agency of the Republic of Indonesia No. 9/2018 [2] for general goods/services procurement. The first regulation allows suppliers to submit objections through the refutation procedure twice: once after the qualification stage (there is a five-day period to submit objections) and again after the contract has been awarded. The regulation does not stipulate complaint mechanisms for after the contract is signed. The second regulation states that suppliers who object can submit objection documents if they encounter errors in the evaluation of the procurement, deviations from procurement procedure, counterfeit/conspiracy to prevent fair business competition and/or abuse of authority by the Committee Procurement and/or related officials [2]. If the grounds for objection are declared correct, the ULP re-evaluates, re-enters the document and may re-select the supplier (depending on the content of the objection submitted by the provider). Meanwhile, if the objection is rejected, the ULP proceeds to submit the selection results to the PPK. Suppliers that wish to challenge the decision are allowed to submit an appeal. If the appellate claim is sustained, the PPK instructs the ULP to re-evaluate or re-select the supplier. If the appellate claim is rejected, the ULP proceeds to submit the selection results to the PPK and the PPK disburses the Appeal Objection Guarantee and hands it to the state/regional treasury. The mechanism for complaints is not stipulated in the tender specification document. Therefore, suppliers must take the initiative to seek the relevant information in the procurement regulations. However, there is no formal English version of the arms procurement regulations as a common reference [3]. Instead, suppliers must rely on their own interpreters and interpretation.

Companies that wish to complain about a procurement process must submit a Refutation Guarantee totalling 2% (two thousandths) of the owner-estimated price (Harga Perkiraan Sendiri, HPS), or a maximum of 50 million rupiahs (equivalent to 3,600 US dollars at current price), to the PPK. In the event that the company’s appeal is rejected, the Refutation Guarantee is given to the state treasury [1]. The reasonable value penalty means that companies should not be discouraged from submitting an objection. The objection mechanism is used regularly, as there is a five-day period dedicated to objections after the winner of the procurement bid is announced. Suppliers that wish to refute the decision can submit a letter of objection to the Power of Budget User (KPA) and the Budget User (PA), which is also CC’d to the Inspectorate General. The Inspectorate General then conducts a verification of the complaint, to which the Centre of Procurement (Pusada) must answer. One interviewee informed us that there are also cases in which the supplier submits their complaints to the Commission for Business Competition Supervisory (KPPU), which then forwards it to the Pusada [2].

The case of the procurement of GCI radar by the Air Force in August 2016 shows that suppliers are not afraid to protest if they see irregularities in the procurement process; there is no open source information to conclude otherwise. In the GCI case mentioned, the auction committee became the target of protests by prospective companies bidding for the radar contract, which was worth 171 million US dollars. The reason for the objection was that the radar technical specifications (a total of 19) clearly pointed to a certain brand. One company from Spain even said it would meet the Minister of Defence in person to submit an objection [1]. The radar tender was eventually cancelled.

A complaints board is set out in the Rules for Organising Tenders for the Armed Forces law. Its provisions are vague and weak. Companies may use informal mechanisms to complain, although there is no evidence of this happening in practice [1].

The complaints mechanism is likely to be inefficient, given that the provisions governing the mechanism are rather vague and quite weak [1]. In a recent field study by Iran’s General Inspection Office conducted in autumn 2017, more than 72 per cent were reported as believing that reporting corruption to the Islamic Republic agencies responsible for tackling corruption only “leads to trouble.” Fifty-nine per cent of respondents also said that nobody in the Islamic Republic pays any attention to complaints [2].

There is no evidence of companies complaining, but as the above answer pointed out more than 72 per cent of respondents in a survey believed that reporting corruption to the Islamic Republic agencies responsible for tackling it only “leads to trouble” [1].

A detailed report (1), on trade and business in Iraq, reveals the introduction of commercial courts to harness dispute resolution for companies in the Kurdistan Region. It notes that Iraq’s judicial system “is not capable of upholding the rule of law or efficiently deal with contractual disputes”. Commercial courts were activated in 2011, but “regulation and legislation remain weak.”

Contractual abuse is rampant and poorly protected intellectual property rights are identified as “stymying innovation and deterring investment”. This is more relevant to business, development and research than for defence suppliers. On average, it can take anywhere up to two years for local courts to complete contract dispute resolution but the cost of which is “elevated, at 28.1” per cent of the claim (1).

Information found online offers an indication that companies are fearful of retaliation against them should they resort to complaints mechanism and procedures. On the contrary, a 2019 publication quotes an unnamed Iraqi security official stating that “foreign security firms have been running missions in Iraq under contracts with the US military deployed in Ein al-Assad airbase, without the Iraqi government’s approval” (2). This suggests not fear but the confidence with which foreign firms act, regardless of governmental attitudes. As the source noted the contractors involved “avoid[ed] presenting any details about their [intended] goal.” The judicial system and complicated bureaucratic procedures may serve as a deterrent, but in practice, it often means that businesses demand clauses “guaranteeing international arbitration” one source notes, in the event of contractual disputes.

There are formal mechanisms in place to allow companies to complain about perceived malpractice in procurement (1) (2). Any supplier can file a complaint to one of the following: the Minister of Defence; the MOD General Manager; the unit for procurement audit in the Procurement Department; the Attorney General; the legal advisor of the MOD; the MOD ombudsman. Furthermore, it is possible to request that the tender board re-examine its decision (3). Each participant in an MOD tender may also file a petition before the District Administrative Court in Israel against decisions of the tender committee. This may include both a court process and an internal complaints mechanism. Companies often write complaints to the controller and go to court. They are many cases in court of the tender committee (4).

The complaints mechanisms available to companies seem to be efficient and reasonably priced, and are also regularly used (1) (2). According to an interview, there are many cases in court related to decisions of the tender committee, illustrating how companies have regular recourse to complaints mechanisms (3).

Companies usually believe that they will not be discriminated against in future procurements.There is no evidence of retaliation (1) (2) (3).

Companies that participated in a selection procedure can complain about perceived malpractice in procurement, according to the code of public procurement [1] and address the Regional Administrative Court. The same decree foresees (art. 211) the possibility to request a pre-litigation opinion to the National Anticorruption Agency.

In case of judicial remedy, companies need to pay a “single contribution” (contributo unificato) that varies according to the value of the contract. The value of this contribution is specified in the Decree of the President of the Republic 30 May 2002, n. 115 [2] and it amounts to 2.000 euro for contract with a value up to 200.000 euro, 4.000 euro for contracts with a value between 200.000 and 1.000.000 euro, and 6.000 euro for contracts valued over 1.000.000 euro [3]. Despite the expensiveness, complaint mechanisms are used by companies, as reported by an analysis of the Court of Auditors on the management of public contracts by the Ministry of Defence [4]. The effectiveness of the judicial syatem is highly affected by the length of proceedings, as also highlighted by the EU Commission’s 2020 EU Justice Scoreboard [5].

According to an interviewed defence company, there is no perception that one will incur any discrimination in future procurements, due to complains [1]. This view can be confirmed by the number of complains presented [2]. Moreover, the independence of the judiciary [3] prevents any possible discrimination in the process.

A few descriptions were found of formal complaints mechanisms in a search of open sources. The Ministry of Defence (MOD)’s whistleblower apparatus is meant for its own employees, and it will often not have a mandate to deal with the complaints by companies that have a contract with the Ministry. [1] According to the Ministry of Defence Organisation Cabinet Order, the Acquisition, Technology & Logistics Agency (ATLA)’s Procurement Management Section is to handle complaints about procurement of equipment and services. [2] According to the Guidance on bidding and contract, [3] this section should be contacted about complaints regarding the right to submit a bid (item 2.5.2), the fulfillment of a contract and supervision, inspection and cost price inspection by the defence authorities (item 7.7), the contract in general (item 9.1) and a bid (item 10.8). Furthermore, companies can seek to resolve a dispute over procurement by going to court. A search of the mainstream national newspapers Asahi Shimbun, [4] Nikkei Shimbun and Yomiuri Shimbun returned only one case of dispute resolution by means of litigation. On December 16, 2015, the Supreme Court of Japan upheld a ruling by the Tokyo High Court that demanded that the Government of Japan pay Fuji Heavy Industries Y35 billion to cover front-end costs for the purchase of a production license from Boeing and other initial expenses, for a contract to produce AH64D attack helicopters, which the Government of Japan cancelled after production had started. [5] The ruling by the Tokyo High Court had overturned an earlier ruling by the Tokyo District Court. [6] Furthermore, companies can file complaints that meet certain criteria with the Government Procurement Challenge System (CHANS). [7] One can complain about specific individual government procurements, including for “general goods and/or services valued at 100,000 SDR (Y15 million) or more, construction services, engineering services and other technical services … valued at 450,000 SDR (Y69 million) or more, and construction services valued at 4,500,000 SDR (Y690 million) or more.”

No price is given in the “Guidance on bidding and contracts” for having ATLA handle complaints, although the guidance does give the size of penalties for breaches of contract. The procedures for filing complaints about various issues are explained in this guidance (see Q68A). Furthermore, ATLA has a section with staff employed to handle complaints. [1] However, no reports or statistics about complaints handled by ATLA were found on the websites of the MOD [2] or ATLA [3] or in the mainstream national newspapers Asahi Shimbun, [4] Nikkei Shimbun [5] or Yomiuri Shimbun. [6] One of the tasks of the Tender Monitoring Boards in the nine Regional Defence Bureaus is to handle appeals from companies for reconsideration of a negative answer to a complaint. The report form that these boards must fill in after their meetings includes a field about handling such appeals. [7] All 156 reports from such meetings in the timeframe of this research that were posted on the homepages of these Tender Monitoring Boards as of February 2020 were searched, but they included only one appeal. This was from a company that requested a reassessment of the low points given for its qualification for an Marine Self-Defence Force (MSDF) guard job that required some technical skills. [8] Only one case of litigation over defence procurement was found in mainstream national newspapers from the timeframe of this research (see Q68A). According to one law firm, the nominal fees paid for litigation in Japan are not high when compared with other countries. [9] However, the fact that litigation in Japan often takes a long time, with first instance proceedings alone often lasing eight months, can lead to other costs. [10] In recent years, CHANS has been used twice to resolve procurement disputes. [11] CHANS, which was established in 1996, has never been used to resolve a dispute over defence procurement. [12] No user fee is mentioned on the webpages of CHANS. [13] Given that there is no publicly available information on either the cost or the frequency of use of the complaints mechanism, this indicator is not scored and is marked ‘Not Enough Information’.

The websites of the Japanese MOD, [1] ATLA, [2] all nine Regional Defence Bureaus [3] and the mainstream national newspapers Asahi Shimbun, [4] Nikkei Shimbun [5] and Yomiuri Shimbun, [6] were searched. However, evidence of what companies believed about the danger of discrimination for genuine complaints was not found. As such, this indicator is not assigned a score and is marked ‘Not Enough Information’.

In relation to defence procurement there are only two available legislations relevant to armed forces contracts and purchases. Military Supplies Law No. 3 of the year 1995, sets out some procedures concerning the defence procurement cycle. General Procurement Law (32) of 1993, and Military Works Law No. 4 of the year 1995, set out specific procedures for tendering in relation to construction work required by the armed forces [1, 2,4]. There are no other policies or legislations that apply to defence, and no further information is provided through the official governmental webpage about complaints regarding malpractice in defence procurement. There is no evidence that complaints mechanisms exist for companies to report defence procurement malpractice, despite the fact that such mechanisms exist for other governmental institutions [3].

The government asserts that any dissatisfied bidder can complain to the Directorate of Defence Procurement, as well as to the chairman joint chiefs of staff and even to the prime minister or anti corruption bureau, and that complaints will be considered thoroughly and treated impartially [5]. However, there is no evidence that this mechanism is formally announced or included in contract information, or even known to bidders.

This sub-indicator has been marked as Not Applicable because there are no complaints mechanisms in Jordan that allow companies to complain about perceived malpractice in defence procurement or in civil procurement law, which is used in many cases within defence procurement procedures [1,2].

This sub-indicator has been marked as Not Applicable because there are no known complaints mechanisms in place for companies to complain, and there is no evidence or information available to enable us to assess companies’ trust that they will not be discriminated against in future procurement, if they complain [1,2].

Companies are allowed in law in section 167 of The Public Procurement and Asset Disposal Act PPADA to lodge a complaint to the the Public Procurement Regulatory Authority on any malpractices by any public institution including Ministry of Defence (MOD). [1]

The cases can be investigated, heard and determined by PPRA or referred to other instititution for further action. Companies have in the past reported MOD to the Public Procurement Administrative Review Board which is an independent entity whose mandate is stipulated within the PPADA. Functions of the Board include hearing and determining disputes. Section 39 of the PPADA also provides for court process, should a procuring entity desire to seek judicial review in a matter that has internally passed through the Review Board. The new regulations have introduced further guidelines for making complaints, including sanctions to non-compliant accounting officials in procurement entities who do not provide documents of procurment processes. [2]

Any individual person is allowed to lodge complaints under section 167 of the The Public Procurement and Asset Disposal Act (PPADA) to the Public Procurement Regulatory Authority (PPRA) againsted any public procuring entity that violates procurement processes. [1]

The Public Procurement Administrative Review Board (PPARB) has the responsibility to ensure that the public has easy access to its services. Companies have so far made complaints against the Ministry of Defence (MOD) and in 2016 financial year, MOD was the most reported procuring entity to the PPARB. According to section 222 of PPADA filling for a judicial review should be accompanied by a refundable security fee valued at 3% of applicant’s tender sum subject to a maximum ten million shillings in a mode of payment determined by the High Court. [2]

There have often been complaints about the fairness of the procurement processes in the Ministry of Defence to The Public Procurement Administrative Review Board (PPARB). [1] Reports revolve around abuse of direct and restricted tendering methods that the ministry is allowed to use to safeguard matters of state security. [2] Besides, aggrieved entities who fail to play along with corrupt procurement dealings, or who opt to take KDF to court, are blacklisted from participating in any procurement activities in future. [3]

Nevertheless, companies usually lodge complaints with the PPARB against many state organs including ministry of defence (MOD) with the hope that they will get a fair hearing. Some of the cases end up being heard and determined, and some are either awarded in favour of applicants [3] and others being thrown out. [4] In general, however, a study on the effectiveness of PPARB found that the institution faces considerable challenges that impact significantly on its ability to execute its mandate. The study observed that there have been some newspaper reports that have questioned the impartiality of the PPARB. The study notes past decisions of PPARB, although not related to the MOD, may have been influenced by external parties such as politicians and business entities. This puts into doubt companies having faith in the board’s ajudicating mechanisms. [5]

Internal and external formal mechanisms are in place for economic operators in Kosovo to complain about procurement activities.
The first phase of the complaint process is to submit a request to review to the contracting authority: any party who considers their rights to have been violated by the decision of a contracting authority during the performance of a procurement activity, and who is consequently damaged or risks being damaged by such a violation, may submit a request to review that contracting authority [1]. The submitted request can relate to contract notices, tender documents or other announcements and decisions over the course of a procurement activity [1]. Such a request for review forces the concerned contracting authority to automatically suspend the implementation of the procurement in motion [1]. A request for review may be submitted free of charge at any stage of any procurement activity [2].
If the economic operator disagrees with the contracting authority’s decision, it may lodge a complaint to the Procurement Review Body (PRB) [3] which corresponds to the second phase of the complaint process. This type of complaint should be submitted only after a preliminary procedure for dispute resolution [3]. Complaint claims submitted to the PRB should be the same as those presented to the contracting authority [4]. If the complaint has been filed in a timely manner and fulfils the requirements, the PRB can then: i) assign to one of its review experts the task of reviewing all allegations contained in the complaint, and ii) establish a review panel to review the allegations filed in the complaint [5]. Based on the Law on Public Procurement, unless the relevant review panel decides otherwise, the filing of a complaint shall automatically require the relevant contracting authority to suspend the conduct of the procurement activity to which the complaint relates [6]. However, if requested by the contracting authority, the PRB’s President may issue an order removing the automatic suspension, if it has negative consequences or harms the public interest as well as the interests of those who have filed the complaint [6]. All complainants are required to pay a complaint fee to the PRB for the following types of complain: i) if a complaint is related to the awarding of a contract, the complaint fee is worth 1% of the value of the offer (and can be no less than 100 Euros and no more than 5,000 Euros) [2]; and ii) if a complaint relates to the contract notices and tender documents, the complaint fee is worth 1% of the estimated contract value (and can be no less than 100 Euros and no more than 5,000 Euros) [2].
If the complainant does not agree with the decision of the PRB, or assumes that this decision goes against the facts presented or it is not in line with the Law on Public Procurement, it may escalate the request the Basic Court to review the decision [10].

The most common complaint mechanism used by interested parties within the framework of the procurement activities is the Procurement Review Body (PRB). In 2018, there was an increase of 38 percent compared to 2017 in the number of complaints submitted to this body [1]: while in 2017, 55s complaints were submitted, the number of complaints in 2018 was 763 in total (a difference of 210 complaints) [1].
Based on the Civil Society Organisations monitoring reports, the Procurement Review Body (PRB) is not efficient when it comes to decision-making. The Body has limited resources and capacity, due to an understaffed Board (two board members are currently under investigation). This lack of resources is causing delays in reviewing and making decisions with respect to these complaints [2]. From June to December 2018, the PRB made 479 decisions; and it is legally required to take no more than thirty-four days to process each complaint [3]. During this period, the PRB exceeded the legal deadline, occasionally taking almost forty days to come to a decision [3].
Besides this, the Civil Society Organisations have recommended that the PRB should standardise its decision-making process, criticising the PRB for not referring to a methodology when handling complaints [4]. This potentially leads to inconsistencies in a number of decisions taken by the PRB [4].

The trend of complaints submitted to the Procurement Review Body (PRB) by economic operators in Kosovo has progressively increased over the last few years [1, 2, 3]. Most decisions taken by the PRB favour the economic operators (companies) over the contracting authorities (public institutions), according to the reports of the Civil Society Organisations [4, 5].
The PRB can decide to blacklist economic operators from participating in procurement activities for a specified period of time [4]. The contracting authorities can request to disqualify and blacklist an economic operator when there are doubts that the latter submits false information or forges a document [7]. However, the PRB for several reasons does not always approve such requests [8]. Whilst the PRB might hesitate to blacklist economic operators, contracting authorities might try to punish companies who file complaints to the PRB [8]. The PRB must cooperate with Prosecutors to prove when economic operators submit false information or forge a document [8]. In cases when the contracting authorities have the tendency to deliberately sabotage an economic operator, the contracting authorities should be held responsible for false reporting [8] in accordance with the legal framework in place.

There are formal procedures in place for companies to complain, which include a court process and an internal complaint mechanism, but they are part of the PTA law, which does not apply to the purchase of “defence materials,” as previously discussed in the answer to question Q64 (1)

This means that we are only sure that these options exist for minor deals the security agencies make for civilian services.

Auditors say they are told that there are mechanisms in place but they have no details on the matter and the media has none as well (2, 3 and 4).

Activists and analyst who track the military dealings of the US, Kuwait’s main supplier, say that they have no heard of any formal complaints being issued and that such disputes are likely to be resolved through informal channels (2, 3, 4, 5 and 6.)

This sub-indicator has been marked Not Applicable because there is no reliable information available to the public or auditors about the cost of complaint mechanisms. However, a prominent lawyer in Kuwait said they are likely to cost over several hundred thousand Kuwaiti dinars and take years to settle because there is a backlog in all courts. The Justice Ministry and the security agencies did not respond to questions about this matter (1).

This sub-indicator has been marked Not Applicable because there are no available facts on the matter since the only people with access to them are in the security agencies. But analysts and activists believe that there would be retaliation for any complaint, regardless of how valid it may be, given that the security agencies have already demonstrated a lack of professionalism (1, 2, 3, 4 and 5). However, there is no concrete evidence to support this belief.

Decisions of the tender boards (procurement commissions) can be challenged in the Procurement Monitoring Bureau and in court. [1] [2] The list of the complaints and decisions taken are available online. [3]

The complaints mechanisms available to bidders are clearly defined, accessible [1] [2] and reasonably priced (e.g. in case of public procurements falling under the Law on Public Procurements, a deposit worth 0,5% of the expected price must be paid [1]). A publicly available list of the complaints and decisions taken indicates that bidders are active in submitting complaints; at least on two occasions in the defence sector in 2018, the Procurement Monitoring Bureau has forbidden the conclusion of a contract with the supposed winner. [3]

The legislation does not allow for discrimination of complainants in future procurements. [1] [2] The active use of the complaint mechanisms suggests that companies are not affraid of retaliation. [3]

In case of dispute, the tender has to present it to the LAF command or responsible administration within 30 days from the moment the issue arose (1), (2). The command or responsible entity has two months to issue its decision, although it is not a requirement (1), (2).

This indicator has not been assigned a score due to insufficient information or evidence.

According to Decrees no. 11573 and 11574, the complaints mechanisms are accessible to the companies. However, the decree does not refer to the cost (1), (2). The effectiveness of the mechanism is unclear due to a lack of published reports (3).

This indicator has not been assigned a score due to insufficient information or evidence.

This sub-indicator has not been scored due to a lack of evidence. The frequency of company complaints and the LAF’s discriminatory decisions are unclear due to a lack of information (1).

Procurement processes are regulated by the Law on Public Procurement and The Law on Public Procurement in the Defence Sector. Both Laws stipulate that, in the case of malpractice during a procurement process, companies can complain to purchasing organisations, the Public Procurement Office or directly to the General Court of Justice, or to the Regional Administrative Court (if the object of procurement is classified equipment, works or services) [1,2]. According to available statistics, the Public Procurement Office received almost 1000 complaints related to violations in public procurement in 2015, and in 2017, 92 percent of them were substantiated [3].

Companies can complain about malpractice to purchasing organisations, the Public Procurement Office and Courts. Complaint mechanisms are free of charge when complaints are addressed to purchasing organisations or to the Public Procurement Office. Moreover, every company can submit such a complaint about perceived malpractice. However, when a company complains to the court, the company has to pay stamp duty. The stamp duty costs ranges from 30 Euros (if the complaint is addressed to the Regional Administrative Court) to 144 Euros (if the complaint is addressed from a group) [1,2]. For instance, in 2015, 320 cases relating to public procurement were investigated in courts [3].

Data shows that companies use their right to complain without fear of being discriminated against in the future. For instance, the Public Procurement Office received almost 1000 complaints relating to violations in public procurement in 2015, and in 2017, 92 % of them were substantiated [1].

Companies can submit their complaints about perceived malpractice in procurement to the Malaysian Anti-Corruption Commission (MACC). [1] They can also bring a case for a breach of contract. [2] Furthermore, if a particular incident occurs, companies can lodge complaints or reports with the Integrity Unit of the Ministry of Defence. Complaints that include issues with corrupt and unfair practices, mismanagement, abuse of power, system weaknesses and work procedures, can be lodged online with the Head of Integrity Unit of the Ministry. [3] The plaintiff’s personal information is protected and kept confidential under the Whistleblower Protection Act 2010 (Act 711). The Act “promotes disclosure of information about any corruption or other misconduct.” [4]

Companies can submit complains about perceived malpractice in procurement to the Malaysian Anti-Corruption Commission (MACC), and they can also file reports with the MINDEF integrity unit. [1, 2] There are very few published cases available. But companies are not discriminated against for initiating the complaints. [1] In addition, foreign companies are quick to find or work with local partners that can understand how to navigate or circumvent compliance issues. So rather than raising complaints, it is likely that foreign companies contribute to the problem of corruption or malpractice in the defence industry. [3]

There were no reports of companies being discriminated against as a result of any complaints lodged. [1] However, even if the incident did happen, it is believed that companies would not escalate the issue further fearing of losing access to future contracts. [2, 3]

Complaints mechanisms exist through the Règlement des Différends (CRD).¹ Complaints must be submitted within two days of the decision being notified to the relevant parties. Article 122 focuses on how the committee can conduct research into a complaint and propose amicable solutions to resolve the dispute/complaint.¹ The Committee is required to issue its verdict within 15 days of being called upon to examine a contested award of a contract, indicating that its research is unlikely to be especially extensive or thorough.¹ But the mechanism can offer a quick and easy way of resolving minor disputes.
Article 123 notes that after having exhausted non-judicial measures, i.e. the CRD, complainants can submit their complaint to a tribunal.
Meanwhile, article 124 states that complainants can seek recourse to judicial arbitration in line with international OHADA standards, but only in cases where an arbitration clause expressly conforms with the necessary specifications.¹
Furthermore, Mali’s online portal for public contracts contains a mechanism to make anonymous denunciations regarding any suspicions of irregularities during the course of a procurement process.² This is a quick, easy and free way of raising complaints with the ARMDS, but there is no evidence to indicate how effective this mechanism is or how widely it is used.²

The procurement code outlines the mechanisms for complaints under the Règlement des Différends (CRD).¹ Furthermore, Mali’s online portal for public contracts contains a mechanism to make anonymous denunciations regarding any suspicions of irregularities during the course of a procurement process.² This is a quick, easy and free way of raising complaints with the ARMDS, but there is no evidence to indicate how effective this mechanism is or how widely it is used.²
However, there is strong evidence to suggest that many companies are not happy with the integrity or the efficiency of the judiciary in commercial matters.
The US Department of State notes that numerous business complaints are awaiting an outcome in the courts because the dispute resolution process can take multiple years. It asserts that “judges and prosecutors’ careers depend on the Ministry of Justice, and hence their independence is compromised. The judicial system is infested by corruption leading to flawed decisions”.³
Mali is a member state to the International Centre for the Settlement of Investment Disputes (ICSID Convention). Mali has also signed and ratified the Convention of the Recognition and Enforcement of Foreign Arbitrage Awards (1958 New York Convention).³ The country is also a member of the African Organisation for the Harmonisation of Business Law (OHADA), which has a provision allowing litigation between foreign companies and domestic companies or with the government to be tried in a court outside of Mali. These provisions allow for companies to resort to international arbitration, which is expensive, but provides an alternative mechanism for firms that do not have confidence in the Malian judicial system. For instance, an American company contracted to complete an airport renovation filed a case in 2013 against the Government of Mali at the Paris Arbitration Court regarding an alleged breach of contract.³
The US Department of State cites other cases that have left companies feeling unjustly treated. In January 2017, the Malian state-owned utility company cancelled a contract with an American company relating to an electricity generation project “with neither any justification nor the authorisation of the Malian Public Procurement Regulatory Office”.³
Meanwhile, in 2015, an American company felt that its bid for an engineering oversight project regarding the renovation of an airport was unjustly disqualified. ARMDS reportedly rejected the US company’s complaint, stating the firm did not wait a requisite 72 hours before contacting the authority. “The company elevated the complaint to the Administrative Chamber of the Malian Supreme Court, where the case now rests indefinitely” according to the US Department of State.³
Finally, another US company “has spent three years trying to negotiate a power purchasing agreement with the GOM regarding a 15 MW hydroelectric plant in Markala”.³ When the government changed in 2013, the new minister responsible for the project requested a new impact study. The Malian government has since reissued the tender which the US company had believed it had already won.³
The GAN Business Anti-corruption portal states that there is a “very high risk of corruption” in Mali’s judicial system, “especially through bribery and influence peddling in courts”.⁴ It adds that:
“Businesses report that irregular payments or bribes to obtain favourable decisions are commonly exchanged . The judiciary lacks resources and professional training and operates slowly and inefficiently. Judges are sometimes absent from their assigned areas for as long as months”.⁴

The assessor found no evidence to indicate whether companies are reluctant to use these mechanisms for fear of unfavourable treatment in future. However, there is strong evidence to suggest that many companies are not happy with the integrity or the efficiency of the judiciary in commercial matters.
The US Department of State notes that numerous business complaints are awaiting an outcome in the courts because the dispute resolution process can take multiple years. It asserts that “judges and prosecutors’ careers depend on the Ministry of Justice, and hence their independence is compromised. The judicial system is infested by corruption leading to flawed decisions”.¹
Mali is a member state to the International Centre for the Settlement of Investment Disputes (ICSID Convention). Mali has also signed and ratified the Convention of the Recognition and Enforcement of Foreign Arbitrage Awards (1958 New York Convention). The country is also a member of the African Organisation for the Harmonisation of Business Law (OHADA), which has a provision allowing litigation between foreign companies and domestic companies or with the government to be tried in a court outside of Mali. These provisions allow for companies to resort to international arbitration, which is expensive, but provides an alternative mechanism for firms that do not have confidence in the Malian judicial system. For instance, an American company contracted to complete an airport renovation filed a case in 2013 against the Government of Mali at the Paris Arbitration Court regarding an alleged breach of contract.¹
The US Department of State cites other cases that have left companies feeling unjustly treated. In January 2017, the Malian state-owned utility company cancelled a contract with an American company relating to an electricity generation project “with neither any justification nor the authorisation of the Malian Public Procurement Regulatory Office”.¹
Meanwhile, in 2015, an American company felt that its bid for an engineering oversight project regarding the renovation of an airport was unjustly disqualified. ARMDS reportedly rejected the US company’s complaint, stating the firm did not wait a requisite 72 hours before contacting the authority. “The company elevated the complaint to the Administrative Chamber of the Malian Supreme Court, where the case now rests indefinitely” according to the US Department of State.¹
Finally, another US company “has spent three years trying to negotiate a power purchasing agreement with the GOM regarding a 15 MW hydroelectric plant in Markala”.¹ When the government changed in 2013, the new minister responsible for the project requested a new impact study. The Malian government has since reissued the tender which the US company had believed it had already won.¹
The GAN Business Anti-corruption portal states that there is a “very high risk of corruption” in Mali’s judicial system, “especially through bribery and influence peddling in courts”.² It adds that: “Businesses report that irregular payments or bribes to obtain favourable decisions are commonly exchanged. The judiciary lacks resources and professional training and operates slowly and inefficiently. Judges are sometimes absent from their assigned areas for as long as months”.²

There are formal mechanisms for companies to present nonconformities derived from the contracting processes directly at the offices of the Ministry of Public Function or through CompraNet, by means of a document describing, among other things, the facts or abstentions that constitute the history of the contested act and the reasons for disagreement. [1]

When a complaint takes place, the regulations state that channels for conciliation must be sought. [2] If successful, for example, criminal lawsuits can be initiated.

The ASF has made available to corporations mechanisms to submit non-conformities through the CompraNet platform, by means of an open form. According to official information, the form protects complainants’ anonymity and confidentiality. Among the form’s questions are whether the forbidden conduct consisted in the request of any kind of bribe. [1]

There is no information available on the number of complaints formulated or that allow us to determine whether these mechanisms are efficient. [2] In this sense, OECD has suggested publishing statistics on the number of complaints regarding procurement proceedings and the type and number of sanctions imposed each year. [3]

In addition to this, the Public Function Secretariat, along with OSC, have developed a mechanism called Compras Inteligentes, through which corporations can evaluate the performance of public entities in procurement and payment procedures through a questionnaire that seeks to identify whether bidders, providers, and contractors were aware of irregular acts that, in their view, would have affected the result of the contracting procedure; or whether there was any conditioning to illicit payments derived from any executed contract. SEDENA has obtained passing grades through Compras Inteligentes. [4]

Extensive research found no information on possible retaliation against companies for complaints or non-conformities filed. [1] [2] [3] As such, this indicator is marked ‘Not Enough Information’.

Companies are allowed to complain to the State commission (SC) for control of public procurements, and they are entitled to challenge its decisions in court. [1]

Because contracting authorities are not obligated to advertise low-value contracts, there is no right to file complaints. [2] Also, “the introduction of new, higher thresholds for application of the PPL means that one may no longer file a complaint with the SC for contracts of less than EUR 15,000 for supplies and services and EUR 30,000 for works” (p.30). [2]

Companies submitting complaints have to pay a fee equalling 1% of the value of the procurement, which cannot exceed 20,000 euros. [1] Representatives of businesses have been warning the government for quite some time that this fee discourages many companies from complaining. [2]

There was a notable reduction in the number of complaints in 2017 and 2018 due to the introduction of higher thresholds for the low-value contracts that are not subject to the Law, changes obliging companies to pay fees in advance of submitting complaints, and changes in the time limit for submitting complaints regarding tender documents to ten days before the opening of bids, so “bidders can no longer wait until contracts have been awarded to file complaints concerning the tendering documents”. [3]

Companies did not complain in relation to secret procurements. [4]

Companies rarely complain because they believe that they will be discriminated against or unfairly disadvantaged in future procurement cycles. [1][2][3]

The 2013 version of the Code of Public Procurement Contracts states the following:(1)
⁃ Articles 45, 83 and 111: a call for tenders or a competition or an architectural consultation can be cancelled if a candidate complains under certain conditions listed under article 169.

There is no evidence that the military sector is explicitly exempt from these rules. Companies therefore have an opportunity to complain about perceived malpractice in procurement. However the revised version of the Code of Public Procurement Contracts does not provide sufficient details about the complaint mechanisms.

No evidence of other regulations or laws detailing the complaint mechanisms were found (2)(3).
There are no details provided on how, or through what sort of channels, the candidate can complain. Based on these elements, it is unclear whether the complaint mechanisms are effectively granted in theory beyond what the 2013 Code of Public Procurement Contracts provides. This lack of detail and transparency increases the risk of corruption despite the legal framework.

This indicator has not been assigned a score due to insufficient information or evidence.

The lack of sufficient details about the formal complaint mechanisms suggests that this cannot be scored.

There has been no report of companies effectively complaining about perceived malpractices in procurement in the local or international press (1)(2)(3)(4)(5)(6)(7)(8)(9).

Both interviewees alleged that local and foreign candidates seemingly victims of perceived malpractices in procurement prefer not to complain to official bodies for fear of retaliation for future contracts, related or not to the contracts they bid for (10)(11).This concerned both the public and the private sector, and is not limited to the military sector. However, this information could not be independently verified.

A complaint mechanism is known to exist. If the contractor does not agree with the decision of the Directorate of Procurement, they can file a complaint. There is no formal court process and contractors will not necessarily file a complaint for the sake of future contracts [1]. This data only comes from an interview with a military contractor and cannot be verified. As such, this indicator is not scored and is marked ‘Not Enough Information’.

The regulations for the complaint mechanism is only available to the contractors and not to the public. We are not able to access enough information to evaluate the effectiveness of the complaint mechanism [1]. Given this, it is not possible to provide a score and this indicator is marked ‘Not Enough Information’.

There have been incidents where contractor companies have complained to the Directorate of Procurement (DoP). The DoP responded to the complaint and the company accepted the reply [1]. However, there is insufficient information regarding whether a company would believe they would be discriminated against after lodging a complaint. As such, this indicator is not scored and is marked ‘Not Enough Information’.

There are three formal complaints mechanisms through which companies can report (alleged) malpractice by other companies, the contracting parties (Ministry of Defence) or third parties in the procurement process. The first is through the Defence Integrity Hotline, a service that is part of the COID [1]. A report made by phone or email is followed up by a confidential advisor [2]. The second way for companies to report malpractice is through the Netherlands Authority for Consumers and Markets (ACM), which specialises in incidents of unfair competition and conflicts of interest [3]. Lastly, the Defence and Security Procurement Act (Articles 3.2 through to 3.7) stipulates the possibility for companies to file a formal complaint with the court system [4].

Reporting (potential) malpractice to the COID and the Netherlands Authority for Consumers and Markets is free of charge, as is submitting an objection through judicial processes [1,2,3]. Use of the Defence Integrity Hotline is documented in the COID’s annual report. In 2019, there were 6 complaints lodged for ‘conflicts of interest and abuse of powers’ and 56 for ‘breach of internal rules’ but it is unclear how many of these pertained to procurement and were lodged by companies [4]. The Netherlands Authority for Consumers and Markets’ 2019 annual report shows that 12 investigations were conducted into unfair government competition practices [5].

Despite the fact that the number of reports against the government as a contracting authority is growing year by year, there is still a pervasive belief that filing complaints could result in negative repercussions for future business relationships with the government [1,2,3,4].

Under Government Procurement Rules (Rule 50), a supplier may complain to an agency if it believes the agency has not followed the rules. An agency must consider and respond promptly and impartially to a complaint [1]. A supplier may raise a complaint by using the supplier feedback service; raising it with the agency; raising a formal complaint; engaging a third-party to mediate; or escalate to an authority and/or court. If a supplier has complained to an agency but is not satisfied, it has several options available for further redress. These may include: an independent review of the investigation conducted by Audit NZ, the complainant’s auditor, or an independent auditor appointed by both the complainant and the agency; a mediation or alternative dispute resolution; an investigation by the Auditor-General; an investigation by the Ombudsman; an investigation by the Public Service Commission; an investigation by the Commerce Commission; or taking the agency to court [2, 3, 4].

All available information suggests that the process is effective, especially since the Commerce Commission acknowledged it had no information on any investigation, complaint, enquiry, or finding relating to defence and security procurements during the period between 1 January 2015 and 1 December 2020 [1]. Moreover, if there is a complaint, the complainant may select their own auditor and need not rely on the Government’s independent auditor [2]. Costs vary as complainants may decide to employ the services of a lawyer to assist their case. If, under review by the OAG, an investigation is enacted then this cost would not be placed upon the complainant as such an action is at the discretion of the OAG and covered under the Estimate of Appropriations [3].

No evidence could be found to suggest that companies believe they will suffer retaliation for genuine complaints. Government Procurement Rules 2 and 3 specifically state that procurements must be non-discriminatory and uphold fair, transparent and reasonable processes [1, 2]. Procedurally there is no practical way in which a supplier with a previous genuine complaint could be excluded from competition since Gateway Reviews and the Better Business Case model are designed to ensure objective analysis [3, 4, 5].

The 2016 Code on Public Procurement provides bidders with non-jurisdictional and jurisdictional mechanisms to file complaints about perceived malpractices or infringements (Art. 164-169) (1). Bidders can complain before the Settlement Committee of the Regulatory Agency on Public Procurement. If these non-jurisdictional mechanisms do not lead to an agreement, cases can be brought to national court under regulations provided by the Organisation for the Harmonisation of Business Law in Africa (OHADA). However, the provisions in Decree No. 2016-641/PRN/PM can only partially be used as a basis for scoring this sub-indicator because contracts for defence and security are not within its scope of application.

Decree No. 2013/570/PRN/PM does allow for a formal complaints mechanism that results in a temporary suspension of the attribution decision. The 2013 Code regarding defence and security procurement is more restrictive regarding the complaints process. According to Art. 70 of the 2013 Decree, a candidate who feels they were unfairly disadvantaged during the procurement process can lodge a complaint against those responsible.

According to Article 70:
“Any candidate who believes they are being unfairly disadvantaged can file a written appeal with the person responsible for procurement. The appeal can relate to the decision to award or to not award the contract on the basis of the capacities and guarantees required and of the terms of the procurement process.

It must invoke a violation of the provisions of this decree.

The appeal must be made within the three working days following notification of the contract award decision, failing which it shall be inadmissible. The purpose of the appeal is to suspend the procurement process until the contracting authority has made its final decision” (2).
(Consultant translation French to English)

The assessor did not find any evidence that there were companies that have lodged complaints about being unfairly disadvantaged or debarred from future procurements. Nor could the assessor find any evidence to suggest that there had been unfair treatment (1,2). A lack of evidence of cases may mean that procedures are not being followed.

This indicator has not been assigned a score due to insufficient information or evidence.

Neither the 2016 Procurement Code (1) nor the 2013 Decree (2) refers to additional protection mechanisms for complaining parties. It is plausible to assume that companies may believe that if they complain they will be unfairly disadvantaged or debarred from future procurements.

Given that the complaints mechanism under the PPA 2007 does not apply to the defence sector it would appear that there is no formal legal mechanism for contractors to make a complaint if there is any irregularity in the procurement process. Officially, complaints can always be made to a senior official such as an accounting officer under the PPA 2007, but this does not guarantee the same effectiveness and independence as a system supported by law. Presumably, an application to a High Court may exist if remedies under the PPA 2007 are ineffective. It is also possible for aggrieved actors to raise the matter with the National Assembly. There is a 9-step complaint process under the Act which is as follows “Where any Contractor/Consultant/MDA is not pleased with the outcome of any procurement proceedings either because of a perceived breach or omission of the provisions of the PPA 2007, he shall:
Step 1: Make a formal and written complaint to the Accounting Officer of the procuring/disposing entity within fifteen (15) working days from when he became aware of the breach or omission.
Step 2: The Accounting Officer shall review the complaint and communicate his decision on the matter to the complainant within fifteen (15) working days. He shall give reasons for his decision and the corrective measures to be taken where necessary.
Step 3: If the Accounting Officer fails to make a decision within the given period or the complainant is not satisfied with his decision, the Act allows the complainant to forward his complaint to the Bureau within ten (10) working days from the date that decision was communicated to him.
Step 4: Upon receiving the complaint, the Bureau shall:
(a) Notify the procuring entity of the complaint and
(b) Suspend any further action by the procuring or disposing entity until the matter is settled
Step 5: Unless the Bureau dismisses the complaint, it shall further
(a) Prohibit the procuring/disposing entity from taking further action,
(b) Nullify part or all of the unlawful act or decision of the procuring or disposing entity,
(c) Declare or make known the rules and principles governing the subject matter of the complaint, and
(d) Reverse any improper decision by the procuring or disposing entity or substitute its own decision for the improper one.
Step 6: The Bureau shall notify all interested bidders of the complaint before taking any decision on the matter and may consider representations from the bidders and the respective procuring or disposing entity.
Step 7: The Bureau shall make its own decision within twenty one (21) working days after receiving the complaint and shall give the reasons for its decision and the remedies granted if any.
Step 8: If the Bureau fails to make its decision within the given time or if the complainant is not satisfied with the Bureau’s decision, the complainant may appeal to the Federal High Court within 30 days after receipt of the Bureau’s decision or the expiration of the time specified for the Bureau to make a decision.
Step 9: The decision of the Federal High Court shall be final on the matter and no further appeals shall lie. (1)

Although a structured complaints procedure is included under the PPA 2007 to the courts, it is rarely used as litigation is costly and may result in ‘blacklisting’ by the officials involved. Under Section 54 PPA 2007, a disgruntled bidder may lay a complaint with the accounting officer of the procuring entity. This can be accelerated through a complaint to the Bureau for Public Procurement and if it needs to be further escalated a claim may be issued in the law courts under the provisions of the Act. However, any company using the complaints process may reasonably have concerns about possible backlash from implicated senior officials which may affect any future bids (1).

The dispute resolution system is not being used for a variety of reasons. Fear of retaliation in the form of the loss of future business and others, and the fact that Nigeria does not possess a strong culture of complaining or litigation generally, contractors instead prefer to accept their losses in the hope that the next time the procurement process will turn out in their favour (1). The strict time limits within which a complaint must be laid may have a negative impact on the willingness of people to use the complaint procedure. The fact that the complaint must first be made to the accounting officer within the procuring entity may deter others from using the complaint procedure (1).

The Law on Public Procurement provides ample opportunities for complains and formal appeals [1]. In cases of important violations of the law and procurement rules listed in Article 210, companies may start an appeal [1]. These cases may be if:
the procedure for awarding the public procurement contract is conducted without a public procurement decision
the tender documentation of the procedure for awarding a public procurement contract is not in accordance with this Law and has caused or could have led to discrimination of the economic operators or restriction of the market competition,
– significant omissions related to the opening of bids have been made,
– significant omissions related to the evaluation of the bids have been made,
– the tender selected was not the most favourable,
– an unacceptable offer was made and selected.
The body responsible for resolving these appeals is the State Appeals Commission (SAC). It is an independent state body composed of a president and members voted in by the public. The Commission has its own Rulebook on procedure, and also acts in accordance with the Law on Public Procurement. The SAC is responsible for:
– settling complaints in the procedures for awarding public procurement contracts prescribed by the Law,
– settling complaints in procedures for awarding concession and public private partnership contracts;
– other work in accordance with the law (Article 200) [1].
The SAC must decide on an outcome within fifteen days of an appeal being lodged. If the appeal is accepted, then the procurement procedure is annulled and must be repeated. If the SAC fails to make a decision within that time period, the appellant may, within five working days, notify the State Administrative Inspectorate [2]. According to the Law on Administrative Inspection, the Inspectorate is a legal body within the Ministry of Information for Society and Administration. Inspection is carried out in to confirm the timely, economical and efficient realisation of the rights and interests of the citizens and other participants in the administrative procedure when solving the administrative matters [3].
The SAC is not allowed to deal with confidential procurements according to Articles 6-11 of the Law on Public Procurement [1].

Ahead of the procedure involving the State Appeals Commission (SAC), an applicant, must pay compensation for the management of the procedure, depending on the amount of the bid, as follows:
– 100 euros worth for a bid worth up to 20.000 Euros;
200 euros worth for a bid worth from 20.000 to 100.000 Euros;
300 euros worth for a bid worth from EUR 100,000 to EUR 200,000;
– 400 errors worth for a bid over 200,000 Euros [1]. This pricing is deemed reasonable and the compliant mechanisms are regularly used. The appeal is made public and the SAC publishes the acceptance of the appeals on its website on a daily basis.

Given the number of complaints lodged on the State Appeals Commission website which have been solved, displayed chronological from 2009 onwards, (with more than 450 for 2018 only), it is assumed that the system is efficient and that companies are not discriminated against, highlighting the importance of this unbiased attitude [1].

Information on available complaint procedures in public procurement is included in the Guidelines on Public Procurement Rules [1]. After a bidder has been notified of the award of a contract, there is a mandatory standstill period until the contract can be signed so that other bidders have the opportunity to appeal the decision. There are 4 different complaint methods:
1. A bidder can complain directly to the procurement authority. A complaint may concern rejection of the bid, cancellation of the bidding process or the contract award. The authority is obliged to provide the reasoning behind their decision.
2. Complaints can also be made to the Complaints Board for Public Procurement (KOFA), an independent complaint authority established in 2003 [2]. KOFA investigates the complaint, makes a conclusion and publishes the conclusion on its website. Cases investigated by KOFA either advisory opinions or penalty cases (gebyrsaker). Penalty cases concern illegal direct awards. KOFA has had the power to make legally binding decisions in such cases since 2017. For other kinds of malpractice, KOFA conclusions are advisory opinions and are not legally binding.
3. It is possible to complain to the EFTA Surveillance Authority (ESA). ESA’s decisions are about Norway as a state, not a particular procurement authority. If ESA does not find a solution then it can send the case against Norway to the EFTA court on the grounds of breach of EEA rules on public procurement.
4. If a complaint is about a breach of the procurement legislation, a bidder can take the case to court and require preliminary injunction. In such a case, the award process is automatically temporarily suspended until the court decides that there are insufficient grounds to further suspend the procurement.

Submitting a complaint about illegal direct award (penalty cases) costs 1 000 NOK (as of 12 June 2020 approximately 104 US dollars). Other kinds of complaints cost 8 000 NOK (as of 12 June 2020 approximately 836 US dollars) [1]. As of June 2020, there are 113 complaints submitted to the Complaints Board for Public Procurement (KOFA). [2] The Complaints Board has one open complaint against the Norwegian Defence Material Agency with regard to an illegal direct contract for the procurement of the Unmanned Aircraft System (UAS) and one open complaint against the Norwegian Defence Logistics Organisation with regard to the rejection of a bidder [3, 4]. Between 2015-2019, the Complaints Board resolved 8 cases against the Norwegian Defence Logistics Organisation, 5 of which were rejected and 3 of which were found not to have constituted a breach of procurement rules. 1 case was withdrawn in 2018 by the complaining part. During the same period, the Complaints Board resolved 9 cases against the Norwegian Defence Estates Agency, 2 of which were rejected and 2 found not to have constituted a breach of procurement rules. In 5 cases against the Norwegian Defence Estates Agency the Complaints Board found breaches of procurements rules. In addition, in 2016 2 cases, 1 against the Ministry of Defence and 1 against the Norwegian Defence Material Agency, were withdrawn.

There is no explicit reference to non-discrimination against suppliers who have made complaints, but §33-1 (4) of the Acquisition Regulations for the Defence Sector Defence requires procurement decisions to be based on non-discriminatory criteria as much as possible [1]. In 2017 the American company Blue Aerospace claimed that, after they had filed a complaint about a procurement decision, the Norwegian Defence Material Agency threatened to side-line them in future bids [2]. In 2019 the same company filed another complaint after their offer had been rejected, again presumably due to non-compliance with technical requirements [3]. It is difficult to verify if the allegations were substantiated, but the company did not win either in the Complaints Board for Public Procurement or in court. Nevertheless, a blog article alleges that many suppliers do not initiate complaints as they believe they will be side-lined in the next rounds of tenders or any future bids [4]. The article deals with public procurement in Norway in general, and does not focus on the defence sector. However, taking into account the number of complaints submitted to the Complaints Board for Public Procurement, there is no strong evidence of discrimination against companies based on past complaints.

It has become apparent that the complaints mechanisms for companies to complain about malpractice in procurement exists only in informal communication. According to sources, the companies can complain based on the contract articles that state the complain mechanism and collision between the government and the company (1), (2).

This indicator is marked Not Applicable because there are no formal complaint mechanisms. It is all based either on informal communication or contract-based articles; there is no way to know how costly it can be (1), (2).

This indicator is marked Not Applicable because there are no formal complaint mechanisms.

Companies rarely complain as they usually settle conflicts in a gentleman’s agreement with the officers or through informal communication channels.

According to Article 56 of General Supplies and Procurement Law (2014), there are formal mechanisms in place to allow companies to complain about perceived malpractice in procurement (1). However, the mechanism does not include a court process. This means that complaints should be handled entirely by the respective security agencies or the MoF (2).

The complaints mechanisms available to companies are costly and inefficient and are thus rarely used. This includes the suspension of financial payments and sometimes not allowing the company to compete in future bidding rounds (1).

Companies believe that if they complain they will be excluded from applying for other bids or be disadvantaged from future business. Therefore many use informal channels to complain (1).

The Government Procurement Policy Board (GPPB) has released a resolution citing complaint mechanism for malpractice in both bidding and implementation stages [1]. Resolution No. 40-2017 describes guidelines for blacklisting companies and actions for any bidder to take when filing formal complaints [2]. This resolution, however, only includes internal complaints mechanism.

Based on the Blacklisting guidelines, initiating the suspension and blacklisting proceedings requires a “reasonable fee” [1]. Currently there are 58 companies in GPPB’s Blacklisted Entities list, four of which are offenses related to defense procurement contracts and were filed by the government procuring entity [2]. However, this indicator is scored Not Enough Information as it is not known how effective or regularly used this process is by companies.

Companies trust the complaint mechanism and believe that they will not be discriminated against because a representative of the COA sits in on the tender committee as an observer to all its proceedings and writes a report [1, 2].

In procurement procedures implemented under the Public Procurement Law, the appeal procedure is described in section VI of the law [1]. It is possible to submit an appeal or complaint. In procurement bids falling outside the legal realm of the Public Procurement Law, in principle, a formal complaint mechanism does not exist. As for the remaining verification methods, several institutions can check the accuracy of the contract, including the Central Anticorruption Bureau [2], the Supreme Audit Office, or the National Appeal Chamber (within Public Procurement Office) [3]. There is also the possibility of internal controls (Department of the Control) or audits within the Ministry of National Defence [4].

Companies use the complaint mechanism of the Public Procurement Law quite regularly. A total of 24 appeals related to defence and security procurements were submitted in 2017 and 33 in 2018 [1, 2]. The first example, from March 2017, is the appeal to the National Appeal Chamber (within Public Procurement Office) by three companies in connection with the purchase of three Boeing 737 aircraft. This purchase was made without tender procedures by the Inspectorate of Armament [3, 4]. Another example is Airbus Helicopters’ intention to pursue claims before the Polish courts in connection with the cancellation by the Polish government to purchase 50 Caracal helicopters in 2016 [5].
The cost of appeal ranges from 7500 PLN (c. 1600 EUR) to 20000 PLN (c. 4400 EUR) and is reasonable. [6]

The complaints mechanism included in the Public Procurement Law has been widely used [1, 2]; therefore, it is possible to infer that companies are not afraid of retaliation. Companies may potentially be afraid of retaliation in cases of non-formal complaints concerning defence procurement excluded from the Public Procurement Law.

The Public Procurement Code specifies formal challenge [1] and complaint [2] procedures for all stages of the procurement process. These are supported by the Administrative Procedure Code [3].

Administrative complaints and challenges are seen as generally inefficient as a result of generalized problems with the administrative justice system [1]. Nonetheless, there are limited instances of usage of these mechanisms [2], which average €204 per appeal.

There is no representative survey of companies’ experiences with complaints mechanisms. However, an appropriate proxy lies in the business perception of the justice system, which suggests some resistance to appeals and contact with courts [1].

Although most of the tenders are single sourced, there are rare cases when bidders have needed to complain. To do so, they use informal channels to speak to the commanders, or they write a complaint and send it to the relevant unit. There are no set mechanisms defined in law, but rather appear as part of the contract. [1,2]

As Qatar is a small country, with a small number of soldiers and military personnel, there are rare cases when a supplier needs to complain. Therefore, the mechanism to do so is written as part of the contract. This mechanism is not regularly used but is partially efficient as it is written into the contract.

Companies prefer not to complain; they normally use informal channels with commanders and officials to solve problems such as collusion and mis-practices, so that they may avoid future disqualifications. This is the norm in Qatari defence procurement. [1,2]

According to Article 105 of Federal Law No. 44, any party involved in a state procurement order can complain about malpractice [1]. Clause 2 states that lodging internal complaints does not prevent the complaining party from proceeding with the complaint via court mechanisms [1].

Section 5.2 of Federal Law No. 275 outlines the specific complaint procedures for defence procurement contracts [2].

To lodge a complaint, a company needs to submit a detailed written letter on the matter of the complaint and attach relevant supporting documents [1]. No fees are required. The complaint mechanism seems to be widely used across the country [2] and sectors [3,4]. However, there are doubts as to whether the mechanism is regularly used for complaints relating to state defence orders. Only 0.27% of documents registered in the database of the Federal Antimonopoly Service since January 2015 to December 2018 (917 documents [5] of 340,489 [6]) are related to the defence sector.

The complaint mechanism seems to be widely used across the country [1] and sectors [2,3,4]. There is no information indicating that any company has been discriminated against in subsequent procurement contracts following its complaints. There are, however, no formal mechanisms to protect complainants from discrimination. In 2019, the FAS raised the question of fining malicious complaints [5].

As for complaints relating to procurement contracts for the defence sector, there is a possibility that contractors complain a lot less frequently within the framework of state defence orders than they do in the civilian sector. Although there is no publicly registered evidence to support this presumption, one may assume that contractors prefer not to use formal mechanisms in order to maintain good relations with representatives of the state defence sector, as most of them are entirely dependent on state defence purchases.

In the past, companies could complain to the Board of Grievances (BOG), Saudi Arabia’s principal and highest administrative tribunal. The BOG had jurisdiction over contract-related disputes where a government entity or an independent public corporate entity is a party (1). In 2017, Saudi authorities established specialized commercial courts and related appeal centres throughout Saudi cities to produce a stronger legal framework for settling disputes (2). These courts are independent institutions directly under the Saudi Ministry of Justice (MoJ) rather than a branch of the BOG and began operating in September 2018 (3). According to the MoJ, the commercial courts issued more than 1,181 judgments in their second month of operation (4) No further details were released on the nature of these cases, and it is unclear whether any of them were related to procurement or other malpractice in defence contracts. However, the courts have taken over the functions of the BOG, which in the past handled disputes regarding defence contracts. Based on anecdotal evidence from the websites of law firms operating in Saudi Arabia, foreign defence contractors have in the past pursued complaints through the BOG, though there is no reference to corruption complaints, but rather to issues such as employment disputes and corporate governance practices (5), (6). According to our sources, complaints are usually solved informally and through personal relations. Defence procurement and purchases are confidential and do not go through civil courts or bodies such as the BOG. In addition to that, it is advised and known that personal and informal communications are much better to solve such malpractice, for fear of exclusion from future activities (7), (8).

Additionally, in May 2016, the Saudi government launched the Saudi Center for Commercial Arbitration (SCCA), a body tasked with administering arbitration procedures in civil and commercial disputes where parties agree to refer their disputes to SCCA arbitration. The SCCA’s decisions are enforceable under both domestic arbitration laws and international treaties such as the 1958 New York Convention (9).

Sources report, that the complaint mechanism is not only costly in time and efforts, but it can lead to future exclusion, which means huge financial costs. Therefore, bidders and suppliers refer to informal mechanisms and informal relations with commanders and officials to solve such conflicts (1), (2). Historically, dispute resolution mechanisms in Saudi Arabia have been criticized as being plagued by uncertainty and inefficiency. Cases would typically take as long as two to three years, and sometimes even longer to finish. Furthermore, commercial courts under the BOG have traditionally asserted jurisdiction over contract disputes in Saudi Arabia, applying Saudi law regardless of whether the parties involved entered into arbitral or side agreements subject to foreign law (3). In some cases, the courts have refused to enforce arbitral awards on widely-interpreted public policy grounds.

Additionally, arbitration is prohibited in disputes involving Saudi government bodies and private contractors, unless approval is obtained by the king, or arbitration as provided for under a special provision of the law. This is a holdover from a landmark case during the 1960s in which an arbitral tribunal rendered an award against the Saudi Arabian government in favour of the Arabian American Oil Co (ARAMCO), which was then majority US-owned (4).

Recently, it appears the government has made efforts to encourage arbitration and streamline the dispute resolution process. This includes creating the above mentioned commercial courts for dispute resolution in October 2017, as well as the SCCA in May 2016. It remains to be seen whether these developments, particularly the establishment of the commercial courts, will lead to meaningful change and improvements in the dispute resolution process for companies operating in Saudi Arabia.

According to sources, companies and suppliers fear exclusions when using formal mechanisms, as there are no policies to protect them from arbitrary actions. Therefore, they rarely if ever complain and refer to informal relationships to solve conflicts (1). According to a Gulf affairs expert, “there are mechanisms in place but companies fear retaliation, so very rarely use them. For the most part, they will seek either official (embassies) or informal channels (networks) to resolve such issues” (2).

Bidders and other companies interested in contracting can file requests for protection of rights in case they perceive any malpractice [1]. The requests are submitted to the contracting authority and the Commission for Protection of Rights in Public Procurement Procedures (hereafter the Commission), which decides on each request [2]. Requests for protection of rights could also be filed by the Public Procurement Office, State Audit Institution, public attorney and civil supervisor [1]. The Commission is an independent state institution, which is at the same time accountable to the National Assembly. The latter appoints president and members (after a call for applications) and receives annual reports on the Commission’s work [3]. Decisions in the Commission are always made by panels consisting of three of its members.
Requests for protection of rights can be submitted in any phase of the contract [1]. After changes in legislative amendments in 2015, filed requests do not halt the tendering process [4]. Moreover, a contracting authority can obtain permission from the Commission to award contract even under pending request if it can prove that a delay would cause unreasonable costs or significantly hamper its work. The deadline for the Commission to decide upon a request is 20 days, and it may be extended up to 15 days if justified [5]. The Commission’s decisions can be challenged through an administrative dispute, in front of Administrative Court. An administrative dispute can also be initiated if the Commission fails to deliver a decision within the 20-day deadline [6].
It is unclear whether requests for the protection of rights could be used in cases of public procurement in the field of defence and security (following Article 127 of the PPL). This is not explicitly prohibited in the regulatory framework [7], but an overview of the Commission’s practise shows there were no decisions in this type of procurement. Protection of classified data could be an issue, though, in fact, the Data Secrecy Act states that authorities appointed by the National Assembly are authorised to access data at all levels of classification which they need for their work [8]. As some procurement in the field of defence and security is exempt from the law (following Article 128 of the PPL), there is no formal mechanism to allow bidders or other interested companies to complain about perceived malpractice.

The Commission has so far struggled with meeting the legally set deadlines for decision-making. An annual report for 2016 presented to the parliamentary Committee on Finance, State Budget and Control of Public Spending, the President of the Commission blamed a period of leadership turnover (2015-2016) for significant delays in decision making and underlined that the average duration of process in a single case had shortened from 74 days in the first quarter of 2016 to 35 days for cases initiated in 2017 [1], which is still well above the ʻregularʼ legal deadline for deciding on requests for protection of rights.
Fees for filing request for protection of rights are outlined in the Public Procurement Law and currently range from 60,000 dinars (approximately EUR 500; low-value procurement and negotiation procedures without an invitation to bid) to 0.1% of the contract value (if the request is submitted after bid opening and the contract value exceeds 120,000,000 dinars). If the Commission decides in favour of the plaintiff, the contracting authority is obliged to reimburse the plaintiff for all costs incurred in the process of protection of rights [2].

An overview of the Commission’s database for the period 2014-2017 shows that the annual numbers of decisions on requests in cases where the MoD was the contracting authority remained at a relatively steady level (15 in 2014, 25 in 2015, 17 in 2016 and 27 in 2017) [1]. It can be assumed, therefore, that companies believe that they will not be discriminated against in future procurements.

There are several mechanisms for companies to flag up concerns to the government for perceived malpractice. The GeBIZ portal directs companies to the Ministry of Finance, which initiates the Government Procurement Adjudication Tribunal set up in accordance with the Government Procurement Act [1, 2]. The Corrupt Practices Investigation Bureau (CPIB) also maintains several methods of filing complaints [3].

There are generally no fees for reporting perceived malpractice in defence procurement, and industry members have expressed confidence in the reporting options available to lodge complaints or seek redress [1, 2].

There is general confidence that there will be no retaliation or penalties for reporting suspected malpractice in good faith [1, 2].

The Department of Defence (DoD) actively creates awareness and training on reporting malpractice in all aspects of fraud and corruption. A DoD whistle-blowing hotline exists and is actively published in DoD reports. Suppliers are also enabled through this process to complain to DoD about process irregularities [1].

The hotline and general contact process mentioned in the DoD Annual Report is the primary complaints mechanism for complaints and possible fraud/corruption.

The complaints mechanisms are generally cost-free, at least in initial tip-offs or lodging of official grievances. Litigation and post-complaint consequences, however, are rather costly. However, there is an atmosphere of “snitching”, that would discourage the use of formal mechanisms. Finding any source that explicitly illustrates this is difficult, though [1].

As mentioned above, the effectiveness of these mechanisms is undermined by a general reluctance to report malfeasance if it causes a negative backlash on the whistleblower [1]. The complaints mechanisms are rarely used as the risk of losing future business with the DoD, as a result, is not negated. Little protections exist in ensuring those reporting procurement malfeasance are not essentially “blacklisted” [1].

South Korea has a legal framework which outlines the protection of those who report malpractice in the public interest. Companies that perceive malpractice in procurement can report it to an administrative agency with investigative authorities, such as the BAI, police and prosecutors, or the Anti-corruption & Civil Rights Commission (ACRC), according to Article 6 of the Protection of Public Interest Reporters Act. [1]
Although the Protection of Public Interest Reporters Act does not include a court process in detail, an internal complaints mechanism is implemented by the Defence Acquisition Programme Administration (DAPA) through the internal ombudsman system. Companies can file complaints or report malpractice in procurement through the DAPA’s ombudsman system, and members of the ombudsman committee can investigate the filed complaints and request an inspection from the DAPA. [2] [3] An interview with a defence expert suggests that companies often come forward to members of the National Defence Committee at the National Assembly to file complaints. [4]

A review of legislation and government data suggests that complaints mechanisms are accessible and used occasionally. Companies can use the service free of charge through the ACRC or the DAPA’s ombudsman system. [1] [2] The total number of complaints filed in the DAPA’s ombudsman system is 82 between the second half of 2014 to the first half of 2018, according to the “DAPA’s Ombudsman White Paper”. [3] While it is used by companies occasionally, the ombudsman system is not very effective, according to an interview with a defence expert. [4] Members of the ombudsman committee are empowered to investigate complaints filed by defence companies and to request an inspection from the DAPA in theory, but it is at the officer’s discretion to decide whether the inspection can be conducted. Although the current administration includes tackling corruption in defence procurement in the national policy priorities, complaints concerning malpractice within the DAPA are likely to be rejected due to this systemic flaw. [5]

An interview with a defence expert and media sources reveal that companies are likely to be discouraged from complaining about perceived malpractice in procurement in the current defence environment. While the DAPA’s ombudsman system is supposed to ensure the anonymity of companies who file complaints, it is not always guaranteed in practice. The insufficient informant protection system may result in discriminating against companies who are not favourable to officers or defence organisations in future procurement. [1] A media report points out that the DAPA has abused its power to control defence companies by imposing considerable fines or prohibiting certain defence companies from participating in future government bidding for minor issues. [2] In addition, whistle-blowers may fear retaliation after coming forward in South Korea. While the legal framework includes whistle-blower protection, many whistle-blowers experience unfair treatment, including dismissal, punishment and criminal prosecution, as the result of reporting. [3] [4] [5]

Formal mechanisms, including a court process do exist in South Sudan. The procurement act, for example, outlines an internal complaints mechanism that service providers can reach out to [1]. But there is no record that is publicly available that shows a company sueing government.

Although a complaints mechanism exists in the procurement act, there is no publicly available information on their effectiveness [1] to allow a grading of this indicator. A review of major news sites on South Sudan does not reveal that the issue has ever been in the public domain [2]. As such, this indicator is marked ‘Not Enough Information’.

There is no publicly available information to score this indicator; as such, this indicator is marked ‘Not Enough Information’. Sources contacted for information were not forthcoming.

Chapters IV and V of Law 9/2017, on Public Contracts, are dedicated to appeal mechanisms, validity and revision of decisions on contracts, and settlement of disputes. Appeal mechanisms include, for instance, the request for precautionary measures, as stated in Article 49: “(…) such measures will be aimed at correcting procedural infractions or preventing other damages from being caused to the interests affected, and may include, among them, those aimed at suspending or suspending the procedure for awarding the contract in question or the execution of any decision taken by the contracting authorities.” Article 45 of Law 9/2017 states that “knowledge and resolution of the appeals referred to in the previous article will be entrusted to the Central Administrative Court of Contractual Appeals (…), attached to the Ministry of Finance” [1].

Title IV of Law 24/2011, on Contracts in the Public Sector in the areas of Defence and Security, deals with the declaration of nullity and special appeals on contract adjudication. Article 59 states that “for the processing and resolution of appeals that refer to classified information, the ministerial departments involved will authorize the members of the Tribunal to handle classified information so that they can examine the appeals that involve the use of such information” and Article 60, on confidentiality, clarifies that “it will be up to said body (the Central Administrative Court of Contractual Appeals) to decide on how to guarantee the confidentiality and secrecy of the information contained in the contracting file, without thereby affecting the rights of the other interested parties to effective legal protection and the right of defence in the procedure” [2].

The Ministry of Defence points out that, in addition, as part of the General Administration in any resolution or procedure act, the company may file an appeal and, optionally, a reinstatement, as per Article 112 of Law 39/2015, of 1 October, of the Common Administrative Procedure of Public Administrations [3].

Complaint mechanisms available to companies are said to be efficient and reasonably priced [1] and have been used. There is a mechanism of appeal for companies at the Central Administrative Court of Contractual Appeals (Tribunal Administrativo Central de Recursos Contractuales). This is an administrative body (e.g. decision-makers are not judges) independent of the judicial branch. This is a measure originating from the EU with the intent of avoiding long processes. Resolutions are public, the plaintiff does not pay for the expenses, and the process suspends the contract adjudication until there is a resolution, which usually occurs within weeks. This mechanism is expressly included in Article 59 of Law 24/2011, on Contracts in the sectors of Defence and Security [2]. Evidence exists that shows companies have resorted to the appeal mechanism at the Central Administrative Court of Contractual Appeals even before these laws were enacted. Examples include, among many others, appeal number 151/2011 (Resolution 190/2011 of 20 July 2011), appeal number 159/2011 (Resolution 195/2011 of 27 July 2011), and appeal 183/2011 (Resolution 223/2011 of 14 September 2011) [3]. However, the Ministry of Defence did not answer the question posed regarding how often complaint mechanisms have been used [4].

A general perception exists that complaining companies may suffer from retaliation that may jeopardise their options for future procurement contracts. According to an interview with a professor on administrative law, related statistics do not exist, but it is widely known that the fear of losing options in future contracts prevents many companies from engaging in formal appeals [1].

According to Transparency International, the Public Grievances Chamber is essentially Sudan’s Ombudsman, established to independently ‘consider complaints related to grievances suffered by citizens in relation to state institutions…’. Transparency International describes it as being poorly staffed and underfunded, producing outdated reports and failing to make most reports available to the public [1]. The assessor was unable to find any currently functioning Chamber website or any other website that offers a standardised complaint submission mechanism for companies to complain about procurement issues. With regard to prospects of seeking redress in court, according to the U.S. Department of State’s 2018 Investment Climate Statement on Sudan, companies would find that courts are effectively extensions of the executive branch and therefore not independent of the same branch of government (executive) about which companies would theoretically be complaining [2]. Under the transitional government, anti-corruption efforts are assigned to a newly created ‘Empowerment Elimination, Anti-Corruption and Funds Recovery Committee’. However, members of many of Sudan’s security and defence sector entities sit on this committee, which is politically motivated to specifically disempower select former regime officials and to recover the wealth that was illegitimately acquired by the latter [3].

In conclusion, it would be very difficult for companies to complain about malpractice in Sudan’s defence and security sector, largely because oversight and anti-corruption entities are not functioning properly and/or themselves include members of defence and security entities. GAN Integrity’s 2016 country profile of Sudan notes that it is impossible to report misconduct to the police and, in any case, the would-be reporters fear reprisal [4]. Nevertheless, some provisions do exist for companies to complain via the Public Grievances Chamber, at least in theory.

According to Transparency International, the Public Grievances Chamber is essentially Sudan’s Ombudsman, established to independently ‘consider complaints related to grievances suffered by citizens in relation to state institutions…’. Transparency International describes it as being poorly staffed and underfunded, producing outdated reports and failing to make most reports available to the public [1]. The assessor was unable to find any currently functioning Chamber website or any other website that offers a standardised complaint submission mechanism for companies to complain about procurement issues. With regard to prospects of seeking redress in court, according to the U.S. Department of State’s 2018 Investment Climate Statement on Sudan, companies would find that courts are effectively extensions of the executive branch and therefore not independent of the same branch of government (executive) about which companies would theoretically be complaining [2]. Under the transitional government, anti-corruption efforts are assigned to a newly created ‘Empowerment Elimination, Anti-Corruption and Funds Recovery Committee’. However, members of many of Sudan’s security and defence sector entities sit on this committee, which is politically motivated to specifically disempower select former regime officials and to recover the wealth that was illegitimately acquired by the latter [3].

In conclusion, it would be very difficult for companies to complain about malpractice in Sudan’s defence and security sector, largely because oversight and anti-corruption entities are not functioning properly and/or themselves include members of defence and security entities. GAN Integrity’s 2016 country profile of Sudan notes that it is impossible to report misconduct to the police and, in any case, the would-be reporters fear reprisal [4].

According to Transparency International, the Public Grievances Chamber is essentially Sudan’s Ombudsman, established to independently ‘consider complaints related to grievances suffered by citizens in relation to state institutions…’. Transparency International describes it as being poorly staffed and underfunded, producing outdated reports and failing to make most reports available to the public [1]. The assessor was unable to find any currently functioning Chamber website or any other website that offers a standardised complaint submission mechanism for companies to complain about procurement issues. Therefore, although the Public Grievances Chamber could exist, there is no evidence that it actually does exist or that companies would even consider using it to complain about procurement activity. Moreover, since nearly all defence procurement is reportedly conducted secretly and without any supervision by civilian institutions of government, it stands to reason that a Public Grievances Chamber would lack access to the information required to investigate a complaint by a defence sector contractor. Therefore, if contractors would consider it futile to raise issues with the Public Grievances Chamber, the question of whether a fear of retaliation prevents them from lodging complaints is obviated.

With regard to prospects of seeking redress in court, according to the U.S. Department of State’s 2018 Investment Climate Statement on Sudan, companies would find that courts are effectively extensions of the executive branch and therefore not independent of the same branch of government (executive) about which companies would theoretically be complaining [2]. Under the transitional government, anti-corruption efforts are assigned to a newly created ‘Empowerment Elimination, Anti-Corruption and Funds Recovery Committee’. However, members of many of Sudan’s security and defence sector entities sit on this committee, which is politically motivated to specifically disempower select former regime officials and to recover the wealth that was illegitimately acquired by the latter [3].

In conclusion, it would be very difficult for companies to complain about malpractice in Sudan’s defence and security sector, largely because oversight and anti-corruption entities are not functioning properly and/or themselves include members of defence and security entities. GAN Integrity’s 2016 country profile of Sudan notes that it is impossible to report misconduct to the police and, in any case, the would-be reporters fear reprisal [4]. Since there is insufficient information on whether companies believe they would be discriminated against for lodging a complaint, this indicator is not scored and is marked ‘Not Enough Information’.

Formal mechanisms are in place to allow companies to complain about perceived malpractice in procurement. A complaint to the Parliamentary Ombudsmen (JO) can be made by anybody who feels that he or she or a third party has been treated wrongly or unjustly by a public authority or an official employed [1] [2].

JO is a public agency that is generally believed to work efficiently. It does not charge for its services [1] [2].

Companies in the defence sector are well protected against discrimination in procurements, as defined in Chapter 1 of the Public Procurement Law [1], and have expressed no concerns of being discriminated against during the studied time period [2].

Chapter 5 of the Bundesgesetz über das öffentliche Beschaffungswesen (BöB) contains provisions on legal protection and complaints. After a contract has been awarded the bidders that have not received the contract have to be “immediately informed” about various aspects like type of procedure used, awardee, offered price, justification of the choice, etc. (Article 23.1). Complaints can be lodged against different decisions such as non-inclusion in the register, the procurement decision or cancellation of the procurement procedure (Article 2). A complaint has to be made within twenty days following the announcement. Although there is no automatic suspensive effect, such an effect can be decided by the court (Article 27) [1]. The revised BöB contains similar rules but is more detailed [2]. Chapter 3 of the Ordinance on Public Procurement (VöB) lays out the rules for arms producers. Procurement falling under Chapter 3, do unlike all others, also allow for the invitation procedure (i.e. not open tender). However, not all of these goods can be complained about through legal mechanisms [3].

Switzerland has an independent judiciary. It ranks eighth out of 137 countries for judicial independence in the World Economic Forum’s Global Competitiveness Index [1]. Complaints have to address the Federal Administrative Court [2]. The database on judgements of the Federal Administrative Court (FAC) has 26 cases that were judged under the Public Procurement Law and involved Armasuisse between 2015-2016. There might be additional unpublished rulings [3].The cost of pursuing these mechanisms can vary significantly.

Call for offers have to be publicly announced containing objective criteria. The inclusion in the register of approved suppliers is also following publicly announced criteria [1]. Decisions have to be justified and are verified internally [2]. Discriminating a supplier because of a complaint is unlikely. The number of complaints brought to the FAC also indicates that suppliers are not worried about retaliation. However, this does not necessarily apply to procurement procedures under Chapter 3 of the Ordinance on Public Procurement (VöB), where justifications still need to be provided, but legal recourse is not possible [3].

Complaint mechanisms within judicial processes are in place and are accounted for in the “Government Procurement Act” [1]. In addition, the “Complaint Review Board” for defence procurement exists so that companies can file complaints about perceived malpractice in procurement within the MND [2, 3].

With the regulations and directions of the “Regulations Governing the Complaint Review for Government Procurement”, “Regulations Governing Fees for the Mediation for Dispute Regarding the Performance of the Contract for Government Procurement ” and the “Organisational Regulations of the Complaint Review Board for Government Procurement” defined by the Public Construction Commission, the complaints mechanisms for defence procurements under the authority of the MND provide a fair and healthy system of effectiveness and accessibility [1, 2, 3]. The complaints mechanisms available to companies are efficient and reasonably priced, and used are regularly; however, the lengthy processes of arbitration and litigation do not serve the purposes of effectiveness and accessibility for companies to file complaints [4, 5].
The actual number of defence procurement complaints submitted to the MND and other defence institutuions is 238 cases in timeframe 2016 – 2020. [5]

Regular surveys of tenders’ complaints are conducted as a mechanism for counter-corruption measures to ensure companies making complaints will be treated in an unbiased and fair manner [1]. Once the complaint process escalates beyond the MND’s capacity, the lengthy arbitration and litigation processes may deter companies from other armament procurement projects [2].

Formal complaint procedures, including the right of appeal to an Appeals Authority established under the Act are laid out in the Public Procurement Act 2011, Part IX, Sections 89-101. This includes both an internal mechanism and court procedure. [1].

Annual Performance Evaluation Reports from the Public Procurement Regulatory Authority indicate that the appeals system is increasingly being used. In 2015/16 there were just 24 primary complaints to Accounting Officers about decisions, and 20 cases taken to appeal. By 2018/19, this had risen to 87 primary complaints to Accounting Officers about decisions, and 28 appeals. [1] However there are no details given about the nature of the complaints, the sectors they came from, or the Procurement Entities involved.

There is not enough information to score this indicator. A review of secondary sources including major media outlets revealed no information on discrimination faced by complainants.

According to the Public Procurement and Supplies Administration Act B.E. 2560 (2017), Section 34(6), the Focal Prices Committee shall consider complaints in cases where it considers a state agency to have failed to implement the rules and procedures for the determination of focal prices. Section 39(7) states that the committee should consider complaints in cases where it considers a state agency to have failed to implement the directions and procedures for carrying out programmes on public procurement anti-corruption co-operation. Part V states that the committee in charge of considering appeals and complaints shall prepare reports on the problems in and obstacles to the consideration of appeals and complaints at least once a year, for submission to the Policy Commission. Sections 114 and 116 state that business operators that have tendered a proposal to a state agency for the procurement of supplies have the right to submit an appeal in connection with the procurement in cases where they consider the state agency to have failed to comply with rules and procedures provided in this Act. This appeal must be made in writing and signed by the appellant. Section 220 states that companies must make a complaint to the Focal Prices Committee within 15 days of recognising a problem. Section 221 states that complaints must be verified with the complaint makers’ signatures, accompanied by evidence and submitted to the committee with a clear description of the case [1].

However, although there are procedures in place in government budget control, budget approval, budget evaluation and internal and external auditing in the Thai public procurement process, there are claims that this process inefficiently controls and monitors the fairness of qualified bidders [2]. According to Interviewee 1, a political scientist, there are mechanisms in place, such as courts, but these are rarely used because they tend to be very ineffective [3].

According to the Public Procurement and Supplies Administration Act B.E. 2560 (2017), complaints by companies or suppliers must be made in the form of official letter, signed and complete with evidence, before being submitted to the committee in charge of considering appeals and complaints submitted by both officials and business operators. This committee shall prepare reports on the problems in and obstacles to the consideration of appeals and complaints every year, for submission to the Policy Commission.

The Licensing Facilitation Act targets red tape and corruption by providing a one-stop shop service through an information centre for public services, which deals with licensing procedures and complaints against state agencies [1,2]. However, according to Kitivichaya Watcharothai, some problems have been found in the public procurement process, including the complaints system in public procurement. Even though government regulations allow bidders to make complaints to the public procurement unit directly through the Public Procurement Committee, the reports and decisions from this committee have been considered only to provide recommendations for the public procurement units in practice. Therefore, most bidders believe the complaint system is ineffective and may cause some opportunity cost due to subsequent conflicts with the relevant public procurement officers and the lengthy duration of the complicated judgement procedures [3].

Looking at the Public Procurement and Supplies Administration Act B.E. 2560 (2017), it is evident that Thailand has formal complaints mechanisms in place for public procurement [1]. Nonetheless, as reported by Kitivichaya Watcharothai, due to the misconduct of public procurement practice in each area of the public procurement process, from operation to contract management, law enforcement, inventory control and written-off material, bidders from both public and private enterprises have now lost confidence in the transparency and equality of the public procurement process.

The government’s ability to efficiently control and monitor public procurement is highly questionable, especially in the case of complaints from bidders relating to the fairness of legal remedies, due to the unreliability of the public procurement system and possible conflicts with the public procurement officers [2]. In Thailand, business operators generally believe that it is easier to pay facilitation payments to civil servants instead of complaining because companies that refuse to pay are likely to fall into the trap of being at a competitive disadvantage compared to other firms in the same field [3]. According to Interviewee 1, a political scientist, there is a fear of retaliation because, if senior brass in the military become irritated by a company taking them to court, that company may never be allowed to be involved in defence procurement in the future [4].

According to our sources, there is an accessible mechanism that allows companies to complain about misconduct or disputes between them and the MoD (1,2).
A dispute is settled:
– amicably, directly between the holder of the contract and the public buyer,
– by referral to the Advisory Committee for the Amicable Settlement of Litigation,
– by arbitration, for the markets of public companies, the specifications may be provided for the settlement of disputes, recourse to arbitration. For disputes concerning the State, public institutions to administration and local public authorities, recourse to arbitration is only possible when these disputes arise from international economic, commercial or financial reports, governed by the arbitration code.
– or to litigation by referral to the competent courts (3).
Article 181 of Decree n°1039-2014, dated 13 March 2014, Organising Public Procurement, provides that companies can complain before the Committee of Monitoring and Review of Procurement. This committee can ask the public purchaser to review the tender if it is established that there is malpractice in procurement. Companies can also complain to the Committee of Amicable Settlement of Litigations. Any contractor whose consent has been vitiated by an act of court may request the competent court to annul the market. He may also claim damages (4). Companies can also complain before the Administrative Court. It should be noted that defence purchases are governed by Decree n° 88-36, dated 12 January 1988. This decree provides a general way for the Committee to examine any problems or disputes relating to the preparation, execution or settlement of contracts and agreements submitted to it. In this decree, there is no special mention to the right for companies to complain about perceived malpractice in procurement.

According to our sources, the mechanism is cheap in terms of cost, which includes a letter of complaint and waiting time. This mechanism allows every company to address the unit, minister, and the Head of Government if needed. The effectiveness of the mechanism depends of the company and the case (1,2). There are no other markers of effectiveness of these mechanisms.

According to our sources, there are few cases of complaints at the ministry level. Given the amount and size of procurement, there are few cases because companies believe that if they complain they may be discriminated against in the future(1,2).

The Law on Public Procurement has a special chapter about this issue entitled ‘CHAPTER 3: Public Procurement Authority, Review of Complaints and Settlement of Disputes’ and Articles 53, 54, 55, 56 and 57 of this chapter clearly regulate how and under what circumstances these complaint mechanisms work [1]. In particular, Article 54, entitled ‘Applications Against Tenders’, states that ‘Tenderers or potential tenderers who claim that they have suffered a loss of right or damage or are likely to suffer a loss of right or damage due to unlawful procedures or actions within the process of the tender may file a complaint and appeal in line with the procedures and principles of this law. The complaint and appeal procedures are the mandatory administrative application pathways that must be exhausted before filing a lawsuit. Complaint applications shall be submitted to the contracting authority and appeal applications shall be submitted to the authority through signed petitions’ [1].

According to Article 55 of the Law on Public Procurement, ‘The complaint shall be made to the contracting authority within the application period, which is 5 days for procurements pursuant to subparagraphs (b) and (c) of Article 21 and 10 days for other cases, following the date on which the proceeding or action, which is subject of the complaint, was realised or should have been realised, and before the contract signing’ [1]. After a complaint has been made, the contracting authority conducts the necessary review of the complaint application and makes a reasoned decision within 10 days following the complaint application. The complainant and the other candidates, tenderers or potential tenderers shall be notified of the decision within 3 days after the date of the decision. Potential tenderers are not notified about decisions other than those that go against the tender notice, tender or pre-qualification documents. If a decision is not made within the specified period, the complainant may submit an appeal application within 10 days following the expiration of the decision period; and if the decision is not deemed appropriate, the candidates, tenderers or potential tenderers, including the complainant, may submit an appeal application to the authority within 10 days following the notification of the decision by the contracting authority.

As stipulated by the articles above, any tenderer or potential tenderer may submit a written appeal to the prosecutors about a contract or bid rigging, but this legal complaint may end with the exclusion of the complainant from future bids. Interviewee 4 suggested that, in cases without any formal mechanisms, informal communication channels within the defence/security sector are used by companies to complain about perceived malpractice in procurement [2].

Interviewee 4 emphasised that the complaints mechanisms available to companies for minor projects are working very well and that the whole complaint mechanism works effectively and fairly [1]. However, Interviewee 6 suggested that, for the major tenders opened by the Presidency of Defence Industries (SSB), submitting a written complaint about a tender is costly, in terms of both money and time, because the administrative body is inclined to transfer these complaints directly to the judicial bodies or the courts. He said it takes a minimum of two years and billions of Turkish lira for a private firm to fight against the administration over a tender. It is therefore financially and politically risky for a firm to keep insisting on their complaints over a tender [2].

Interviewee 3 suggested that an armed drone manufacturer submitted a complaint about the procurement of armed drones in several years ago [3]. Another firm won the tender, so the armed drone manufacturer submitted a complaint on the grounds that the winner could not guarantee the qualification requirements. Interviewee 3 explained that the complaint went to court and nothing happened, and that the company was then excluded from all drone procurement processes for the next couple of years [3]. Although the assessor could not verify this claim through open source research, it is likely to be true based on conversations with other reliable experts in Ankara. It should also be noted that the increase in the usage of ‘Electronic Public Procurement Platform’ (EPPP), or in other words, the digitalisation of the public procurement process in Turkey, creates inevitable efficiency and transparency.

According to Article 54 of Law on Public Procurement, which regulates applications against the tenders, upon receipt of the applications, a reasoned decision is to be made by the contracting authority:
a) Order the termination of the procurement proceedings in the case of a violation of law which would constitute an obstacle for the continuation of the tender proceeding and which cannot be remedied by taking corrective measures;
b) Determine corrective measures in cases where the problem may be remedied through correction and where it is not necessary to interrupt the procurement process;
c) Reject the application in cases where the application does not comply with related rules regarding time, procedure and form, the contract has been signed properly or no infringement of law could be detected or the subject of the appeal is not covered in the authority’s field of duty [1].
As seen above, the legislation provides enough room for the tender board to retaliate in proper terms.

Interviewee 4 suggested that the Law on Public Procurement protects government agencies and that tender commissions may easily exclude a firm from a bidding process even for very trival mistakes, such as minor spelling miskates or typos on delivered documents. However, he emphasised that companies believe that if they complain, they will be at an unfair disadvantage or debarred from future procurements [2]. So, it is not so easy for an invididual or corporate entitiy to deliver a written appeal to the prosecutors.

Section 89 of the Public Procurement and Disposal of Public Assets Act (PPDA) [1], provides for an administrative review. Subsection (1) states:
“that a bidder may seek administrative review for any omission or breach by a procuring and disposing entity of this Act or any regulations or guidelines made under this Act or of the provisions of bidding documents, including best practices” [1].

Section 90 of the PPDA Act [2] also provides the bidder with the opportunity to ask for a review by the Accounting Officer. Subsection (1) states “that a bidder who is aggrieved by a decision of a procuring and disposing entity may make a complaint to the Accounting Officer of the procuring and disposing entity” [2].

Section 91 of the PPDA Act [3] provides for the review by the Public Procurement and Disposal of Public Assets Authority in cases where the lower units have not addressed the bidder’s complaint satisfactorily. Subsection (1) states:
“That upon receipt of a complaint, the Authority shall promptly give notice of the complaint to the respective procuring and disposing entity, suspending any further action thereon by the procuring and disposing entity until the Authority has settled the matter. Subsection (2) further states that the Authority shall, unless it dismisses the complaint—
(a) prohibit a procuring and disposing entity from taking any further action; or
(b) annul in whole or in part an unlawful act or decision made by the procuring and disposing entity. Should there be more doubt, a company can proceed to court” [3].

In Section 91M, a company is free to Appeals to the High Court from decisions of the Tribunal. Subsection (1) states “that a party to proceedings before the Tribunal who is aggrieved by the decisions of the Tribunal, may, within thirty days after being notified of the decision of the Tribunal or within such further time as the High Court may allow, lodge a notice of appeal with the registrar of the High Court” [4].

The legal provisions are effective but costly. However, having the mechanisms is not a guarantee that a loser will get justice. But there are examples where contracts were cancelled because a complaint was filed. For example, the Ministry of Defence and Veterans Affairs cancelled an Shs130b Uganda People’s Defence Force hospital contract in 2016. The contract had been awarded to the Seyani Brothers and Prabat Constructions in a joint venture, but it was cancelled after it emerged that the project price had been scaled up from Shs113b to more than Shs130b without consistent explanation [1].

There is not enough information to score this indicator. Most of the tenders which have been cancelled resulted from the aggrieved companies’ complaints. Therefore there is no evidence that companies that report perceived malpractices are retaliated against because they are protected by law [1, 2, 3]. However, this does not rule out retaliation against complainants. Therefore, there is insufficient information regarding whether a company would belive that they would be discriminated against after lodging a complaint.

Classified procurement:
The legislation does not provide any specific mechanisms for companies to complain about perceived malpractice [1, 2]. There are two clauses (Para 4 of Article 12 and 5, Para 26-6) that state, disputes between government customers and suppliers in regards to the implementation of the procurement procedure, during conclusion, execution, amendment or termination of state contracts, as well as reimbursement of losses shall be resolved through negotiations, consultations and in court.
Non-classified procurement:
There is the Antimonopoly Committee of Ukraine which controls protection of economic competition, prevents, detects and terminates violations of legislation on protection of economic competition [3]. Companies can appeal to Administrative boards of the Antimonopoly Committee in case of perceived malpractice and these boards are empowered to make decisions on behalf of the Antimonopoly Committee. The committee has the power to reject tenders [4], competition procedures [5], etc.

Classified procurement:
Companies can resolve disputes in court [1, 2]; however, according to the Unified State Register for Court Decisions, a large number of proceedings are initiated by the MoD itself [3, 4, 5, 6]. The rates of court fees are established both by the Law of Ukraine “On court fee” and the Law of Ukraine “On the State Budget for 2018” [7]: 1.5% of the price of a claim is for legal entities. 1% of the price of a claim for individuals for claims dealing with property, and 1762 UAH (63 USD) for a claim for legal entities/704 UAH (25 USD) for a claim for individuals for claims dealing with other non-property issues [7].
Non-classified procurement:
A person will pay 5,000 UAH in case of an appeal of the procedure for the purchase of goods or services, and 15,000 UAH in case of an appeal of the procedure of procurement of works for filing a complaint to the Antimonopoly Committee of Ukraine [8]. Although these prices do not seem to be high, they make it less feasible for suppliers to complain in cases of tenders with a lower expected value [10]. According to the Prozorro website, 35.8% of all complaints in regards to MoD tenders were successful for suppliers, and 22.6% were unsuccessful (revoked or rejected), and 10% of all corresponding suppliers filed complaints [11]. There are also cases of suppliers filing a lawsuit against the MoD [9].
However, the judiciary system of Ukraine does not function properly and does not provide adequate protection for companies which participate in defence procurement [12].

The level of trust in the Ukrainian judiciary is extremely low, with only 0.5% of citizens being fully sure in the courts’ credibility, and 6.5% of citizens are partially sure [1]. Other sources provide higher numbers: 14% trust the judiciary, 32% do not [2]. In regards to public procurement and Antimonopoly Committee activities, one third out of 164 respondents surveyed do not trust the complaint mechanism or do not know about it [3]. This leads to situations where suppliers prefer not to complain at all [3].

This assessment has demonstrated that there are no oversight bodies that regulate defence procurement, and for this reason, there is not a complaint mechanism to report malpractice. Additionally, evidence showed that there are no laws or regulations that describe the procurement mechanisms of the defence sector in relation to the selection of suppliers; and there is no evidence to suggest that defence procurement is ever conducted as an open competition (1), (2). There is no evidence on the internet of any call for bids or tenders on any of the government’s official websites. As such, there are no set mechanisms for companies to complain about perceived malpractice in defence procurement because there are no formal and official regulations that stipulate protection from any discrimination during the completion process (3).

This sub-indicator has been marked as Not Applicable as there are no complaint mechanisms in place to allow companies to complain about perceived malpractice in procurement, and thus an assessment of effectiveness is irrelevant in this context (1).

This sub-indicator has been marked as Not Applicable as there are no complaint mechanisms in place to allow companies to complain about perceived malpractice in procurement, and thus assessing whether companies trust complaint mechanisms and do not fear retaliation is irrelevant in this context (1).

There is a general, MoD-wide complaints procedure which outlines how to make a complaint and what to do if one is not satisfied with how the complaint is handled [1]. However, the more relevant channel through which companies can complain about perceived malpractice in procurement is the Public Procurement Review Service (PPRS), previously known as the Mystery Shopper Scheme [2].

The Public Procurement Review Service sits within the Cabinet Office, and allows government suppliers and potential government suppliers to raise concerns anonymously about potentially poor public sector procurement practice. Cases can be handled internally or via a court process. Finally, there is also the MOD’s confidential hotline that can be used to raise concerns about fraud, environmental damages, breaches of the law and codes of conduct. The hotline is free to use, confidential and can be used by contractors and members of the public [3].

The complaints mechanism available to companies is free. However, it does not appear to be used a lot, as there were only 20 complaints made in regards to the MOD over the course of 3 years (January 2018 to March 2021) [1].

There are also no publicly avaiable figures on the number of complaints made through the MOD’s confidential hotline and no breakdown of complaints to identify contractor-specific ones.

Based on the multitude and regularity of complaints, some of which are expressed publicly by companies, there is no reason to assume that companies believe that they will be discriminated against in future procurements [1].

The Contractor Disclosure Program enables contractors to report violations of criminal law and violations of the civil False Claims Act [1]. The DoD Inspector General coordinates the programme for the DoD, following the mandate assigned to it by the Contractor Code of Business Ethics and Conduct [2]. Contractors are protected from reprisal for disclosing evidence to a specific list of individuals [3].

Contractor employees also have whistleblowing protections as outlined in the DFARS [4], which apply to any complaint made to a member of Congress, an Inspector General, the GAO, a DoD employee, a court or the Department of Justice. According to the DFARS, if an employee of a contractor or subcontractor is discriminated against for disclosing information about fraud, mismanagement, waste and abuse or other activities, the employee can file a complaint with the DoD IG.

The Contractor Disclosure Program is free of charge and consists only of a form that can be emailed or posted once completed. It is therefore free of cost and easy to use [1]. There are no statistics available on the use of the disclosure programme so it is hard to assess whether it is frequently used. The Justice Department issued a press release about civil cases involving the False Claims Act and stated that whistleblower actions constitute a significant percentage of the False Claims Act cases filed. It is not clear whether this includes disclosures made to the DoD via the Contractor Disclosure Program [2].

It has been difficult to accurately assess this indicator. In 2008, Boeing challenged the government’s decision to award Northrup Grumman and EADS a $35 billion contract to build midair refueling tankers [1]. DoD auditors, alongside the GAO, agreed that the Air Force unfairly evaluated the Boeing bid and encouraged the Air Force to re-open negotiations. In its article, the New York Times does note that ‘Boeing’s decision to lodge a protest was a bold one, and it risked alienating the company’s biggest customer. At the time of the decision, Air Force officials had sent out strong signals that they hoped Boeing would not take the course that it did, arguing that a protest by Boeing would only further delay a needed program in a time of war’ [1]. However, in 2011, Boeing did win the contract despite this [2]. Beyond this example, there is very little evidence that shines a light on whether companies fear retaliation from the DoD if they were to complain about malpractice in procurement. As such, this indicator is not scored and is marked ‘Not Enough Information’.

The Public Procurement Law (LCP) makes available complaint and clarification mechanisms that can be by participants in a procurement process. According to Article 20, the procurement record containing all the actions taken during the procurement process may be requested by participants once the tender has been completed, and they may request clarifications during the process [1]. In the event that a participant considers practices to contravene either the law or the contract specifications, the participant should lodge a complaint with the Office of the Comptroller General of the Republic (CGR).

Rather than opening up an option for complaints during the contract process that would allow internal reviews of procedures, these mechanisms allow complaints to be lodged with an external body to denounce a contravention of the law that, if proven, would result in administrative sanctions [2].

Supreme Court judgment 1.421, dated 15 December 2016, restricts the powers of the CGR over defence finances [1]. Based this decision, oversight of the defence sector rests with the Office of the Comptroller General of the National Bolivarian Armed Forces (CONGEFANB) [2,3,4]. However, the Public Procurement Law permits companies to file complaints before the national Comptroller (CGR). This is likely to contribute to problems, since companies may file complaints to an entity that has been deemed without jurisdiction; it can be assumed that will reduce the incentive to file complaints [5].

Although there are no reports of direct denunciations in cases of contracting by the defence sector or other public sectors, it is likely that the high levels of distrust in judicial institutions and the armed forces [1] – and the existence of threats towards leading social organisations [2] that seek to report cases of corruption – may deter individuals and companies from filing complaints and denunciations. This dissuasion may be associated not only with a fear of violent reprisals, but also with possible exclusion from obtaining public resources, given that the Venezuelan state is heavily militarised.

The Public Procurement Act has a mechanism to complain where malpractice is suspected or where unfair adjudication is suspected in respect of the bidding process [1]. Once the procurement authority is satisfied that a prima facie case has been made in this respect, a detailed investigation can then be instituted by a review panel which is appointed in terms of the Public Procurement Act. The panel must be made up of individuals nominated from the Law Society, the Civil Service and other professional associations. At least one of the nominated persons must be a registered legal practitioner. There is also a provision to appeal to the Administrative Court if the aggrieved party is not satisfied by the handling of the review by the panel. Further, the Constitution of Zimbabwe provides for the right to administrative justice, that provision can be used to institute tendering/procurement reviews [2, 3]. All this applies to all stages of contracting, including the period of contract performance.

The mechanism is relatively effective because the review panel is composed of individuals otherwise not resident in state institutions – this gives some semblance of independence. The Public Procurement and Disposal of Public Assets Act stipulates that a certain amount of money must be deposited to facilitate the review of tender/procurement processes [1]. The amount is usually not exorbitant, though court appeals and representations during reviews entail some legal costs, which might be a deterrent to some bidders [2].

There are instances where aggrieved bidders are reluctant to take procurement authorities to the Administrative Court even when they feel that their failure to obtain bids or contracts is because of procurement malpractice. They fear blacklisting and are content with trying their luck in the future than appeal and burn bridges [1]. Nonetheless, there are occasions when aggrieved bidders have taken government departments/entities to the Administrative Court to challenge the award of tenders and contracts [2]. This is not common for defence contracts