If an appeal is found to have merit, various forms of relief may be appropriate, depending upon the findings of the Privatization Procurement Appeals Board and the phase of procurement at which the issue(s) arose. The alternatives include the following determinations:
a. Corruption
1) If the Privatization Procurement Appeals Board determines that the selection of a preferred bidder for a Privatization contract award was influenced by corrupt or prohibited activities, either by that party or on its behalf, contract award to that bidder shall be prohibited and any Privatization Contract that has been signed shall be terminated. The decision will also be furnished to appropriate authorities to determine whether additional civil or criminal charges may be warranted. Contract award may then be made to the second highest ranking bidder, if this bid offers sufficient value for money. This contract award must be approved by the appropriate Supervisory Committee and CEDA, based upon an updated Fourth File.
2) If the Privatization Procurement Appeals Board determines that a private party's presence on a RFQ/RFP shortlist was influenced by corrupt or prohibited activities, either by that party or on its behalf, that bidder shall be struck from the procurement shortlist. The decision will also be furnished to appropriate authorities to determine whether additional civil or criminal charges may be warranted.
3) If the Privatization Procurement Appeals Board determines that: (a) corrupt or prohibited activities occurred during a Privatization procurement; and (b) these activities led to any aspect(s) of the procurement being inappropriately conducted; and (c) an appeal was filed before shortlist or award decision (as applicable) was made, then any party conducting such activities or on whose behalf such activities were conducted will be excluded from further participation in this procurement. In addition, the procuring party will be required to amend the procurement to remedy any aspect which will limit competition or otherwise negatively influence the outcome. The decision will also be furnished to appropriate authorities to determine whether additional civil or criminal charges may be warranted.
4) If the Privatization procurement Appeals Board determines that corrupt or prohibited activities occurred during a Privatization procurement, but that these activities did not materially influence the procurement (e.g., they were intended to benefit a party who was not selected as the preferred bidder), the Privatization procurement Appeals Board may elect not to invalidate the selection of the preferred bidder, but will furnish the decision to the appropriate authorities to determine whether additional civil or criminal charges may be warranted.
b. Noncompliance with NCP Procedures
1) If the Privatization Procurement Appeals Board determines that the selection of a preferred bidder for a Privatization contract award was materially influenced by Entity noncompliance with NCP requirements (e.g., through error or omission), contract award to that bidder shall be prohibited and the procuring party may be asked to re-perform the impacted parts of the procurement. Upon correction of the noncompliant processes, the procurement will continue, and the original preferred bidder will remain eligible to participate in the procurement. If the noncompliant processes cannot be remedied, the Privatization Procurement Appeals Board will determine whether the procurement should be cancelled or allowed to proceed or the Privatization Contract Terminated.
2) If the Privatization Procurement Appeals Board determines that the selection of a shortlist of bidders for a Privatization contract award was materially influenced by government noncompliance with NCP requirements (e.g., through error or omission), continuation of the procurement with that shortlist shall be prohibited and the procuring agency may be asked to re-perform the impacted parts of the procurement. Upon correction of the noncompliant processes, the procurement will continue, and the original shortlisted bidders will remain eligible to participate in the procurement. If the noncompliant processes cannot be remedied, the Privatization Procurement Appeals Board will determine whether the procurement should be cancelled or allowed to proceed.
3) If the Privatization Procurement Appeals Board determines that a procuring party's conduct of procurement was noncompliant with NCP requirements and that an appeal was filed before shortlist or award decision (as applicable) was made, then the procuring agency may be asked to re-perform the impacted parts of the procurement. Upon correction of the noncompliant processes, the procurement will continue. If the noncompliant processes cannot be remedied, the Privatization Procurement Appeals Board will determine whether the procurement should be cancelled or allowed to proceed.
c. Finding of Compliance
If the Privatization Procurement Appeals Board determines that the Privatization procurement has been conducted in compliance with NCP requirements and there is no evidence of corrupt or prohibited activities, the Privatization Procurement Appeals Board will deny the appeal, and the procuring Entity shall proceed with the procurement.