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The Rules Governing the Committee for Appeals against PSP Projects’ Tendering and Awarding Procedures
(Non-Official English Translation of the Official Arabic text, the Arabic version of the Rules shall be applied)

Part 1

Definitions

ARTICLE 1:
Unless the context otherwise indicates, the words and terms of this Rules shall have the same specified meanings as in the Law, the Governing Rules, and the Implementing Regulation, and the following words and terms shall have the meanings specified herein:

The Law: The Private Sector Participation (PSP) Law.
The Governing Rules: The PSP Governing Rules issued pursuant to the Law.
The Implementing Regulations: The Implementing Regulations of the PSP Law.
The Rules: The rules governing the committee for appeals against PSP projects’ tendering and awarding procedures
NCP: The National Center for Privatization.
Board of Directors: NCP's Board of Directors.
Committee: The Committee formed to hear appeals against the PSP Projects’ tendering and awarding procedures.
Member(s): Member(s) of the Committee.
Chairman: Chairman of the Committee.
Secretariat: Secretariat of the Committee.
Secretary: Secretary of the Committee.

Part 2

Committee Governance

ARTICLE 2:
One or more committee(s) shall be formed pursuant to a decision of the Board of Directors, a Committee shall consist of at least five Members, including the Chairman and the Deputy Chairman, where at least two of them must have qualifications in the legal field, Members shall have professional adequacy, experience, knowledge, skills, and independence needed to enable them to perform their duties competently and skillfully, all Members shall:
  • Be Saudis.
  • Have a bachelor's degree as a minimum.
  • Has at least ten years of experience in his field, and at least fifteen years of experience for the Chairman.
  • Have sufficient technical skills in the PSP field.
  • Have no conflict of interest.
  • Not have been sentenced to prescribed legal punishment, qisas, imprisonment, or a penalty that violates honor and trust, unless such conviction/penalty has been quashed.
ARTICLE 3:
Pursuant to a decision of the Board of Directors, the term of the Chairman, deputy Chairman, and Members shall be (3) years, the term can be renewed for one time, the decision shall identify one or more reserve Members.
ARTICLE 4:
  • The Chairman shall supervise the Committee’s sessions, the progress of its work, and the accomplishment of its tasks, and in particular, shall have the following responsibilities:
    • Chairing and managing Committee sessions.
    • Call Members to meet whenever the need arises.
    • Scheduling the Committee’s sessions, and develop the agenda, in coordination with the Members and the Secretariat.
  • The deputy Chairman shall take the place of the Chairman in case of his absence.
ARTICLE 5:
The Member shall adhere to the following:
  • Impartiality in his activities.
  • Comply with the provisions of the Law, the Governing Rules, the Implementing Regulations, and these Rules, while carrying out his duties.
  • Dedicating sufficient time to carry out his responsibilities, including being prepared for meetings.
  • Participating in the Committee's deliberations and discussions, and voting on the issues presented to it.
  • Attending the meetings regularly, and notifying the Chairman and the Secretariat, in advance and before a reasonable time, if he is unable to attend.
  • Maintaining the confidentiality of the Committee’s work, and refraining from disclosing any information circulated to him, or which came to his knowledge by virtue of his membership in the Committee, to any individual or entity, except in accordance with the applicable laws and regulations.
  • Avoiding conflict of interest, and disclosing any such conflict as soon as he becomes aware of it, and stepping down and not participating, attending meetings, or voting on any decision related to such conflict, and the Secretary must document the event of stepping down in the Committee’s minutes of meeting.
ARTICLE 6:
  • The Committee shall have a Secretariat that includes specialized consultants and admin staff, and a Secretary that is not a Member.
  • A Secretary shall be appointed pursuant to a decision of the Board of Directors, and shall have the sufficient professional competence, experience, knowledge, skills, and independence needed to enable him to perform his duties competently and efficiently, and shall in particular:
    • Be Saudi.
    • Have a bachelor's degree in Sharia or law from one of the Kingdom's universities or one of the recognized international universities.
    • Have at least ten years of experience in the legal field.
    • Be able to record, organize, and accurately store the minutes of meetings and decisions of the Committee.
    • Have sufficient expertise in the PSP field.
    • Be of good conduct.
    • Have no conflict of interest.
    • Be fluent in both Arabic and English.
  • The administrative structuring of the Secretariat and its needed employees shall be determined pursuant to a decision of the Board of Directors based on the recommendation of the Secretary.
ARTICLE 7:
The Secretariat shall undertake the following responsibilities:
  • Preparing the Committee’s work procedures, and organizing its sessions.
  • Carrying out administrative tasks, preparations, technical assistance, and support, including notifying the receipt of appeals, exchange of notes, notification of sessions, and communicating the Committee's decisions.
  • Conducting research, studies, and consultations related to appeals submitted against the PSP Project tendering and awarding procedures.
  • Recording appeals; organize, number, store and archive all appeal records, including keeping a record of the Committee’s sessions’ minutes of meetings, controlling activities, correspondence, schedules, notifications, and decisions, and archiving them in hard and soft copies.
  • Contacting stakeholders and relevant parties to facilitate the Committee's duties, coordinating between the Committee and other entities, and receiving and responding to general inquiries.
  • After being approved by the Chairman, submitting periodic reports to the Board of Directors and the Chairman with regard to the Committee's work, achievements, and recommendations.
  • Monitoring the Committee's work, and ensuring compliance with these Rules.
  • Supporting and follow up the Committee’s tasks.
  • Any other duties as determined by the Chairman.
ARTICLE 8:
  • The Chairman may evaluate the Members periodically, and submit to the Board of Directors to approve the termination of a Member, and replace him with an reserve Member, or appoint a new Member in the Committee, if necessary, or take what he deems appropriate in any of the following cases:
    • If the Member breaches his obligations.
    • If the membership in the committee cannot continue.
    • If the Member fails to attend (4) consecutive sessions or (10) separate sessions during the same year without a valid reason.
    • The existence of an untreatable conflict of interest.
    • The death of the Member.
    • The loss of the Member's legal capacity or the occurrence of a disability prevents him from carrying out his duties.
    • If any of the membership requirements have been lost.
    • If the reserve Member failed to attend three sessions to which he has been invited during one year.
  • The reserve and/or new Member shall sit on the Committee upon notice from the Chairman.

Part 3

The Committee’s Meetings

ARTICLE 9:
  • The Committee’s meetings shall be held at NCP headquarter, and shall be chaired by the Chairman or, in case of the Chairman’s absence, his deputy. The Committee meeting may be held in any other place within the Kingdom when needed.
  • The Chairman shall coordinate annually, at the beginning of each year, with the Members to approve an annual schedule of the Committee’s meetings. The Secretariat shall coordinate communication with the Members, edit the meeting schedule, and make any amendments to it based on the approval of the Members, and the Committee shall prepare the schedule of its meetings to commence the hearing of the appeals submitted and to expedite decisions.
  • The Committee shall meet on the days specified for each meeting, in urgent cases that are not accommodated by scheduled meetings in accordance with Paragraph (2) of this Article, the Committee may meet upon an invitation from the Chairman or his deputy, in case of the absence of the Chairman, the invitation shall include, if possible, all documents and information to be discussed, and the complete files of the received appeals, which shall be sent to Members at least three working days before the date of the meeting by any means the Committee deems appropriate, in order to maintain the confidentiality of relevant documents and information.
  • The Committee meeting shall be valid if attended by the majority of the Members, including the Chairman or his deputy - in case of the Chairman's absence -, provided that one of the attendance shall be of Members who has qualifications in the legal field.
  • If the quorum for the meeting is not reached due to a Member’s resignation or non-attendance, the meeting will be rescheduled to the nearest time that the Members are able to attend to meet the quorum.
  • The Committee may invite whomever it deems fit - if necessary - to attend its meetings without having the right to vote, and without having the right to access confidential information or documents except within the limits of what achieves the purpose of his attendance, after signing the non-disclosure agreement prepared by the Secretariat.
  • The Committee, when needed, may hold its meetings remotely, including video or audio calls, provided that each Member could hear the discussion of the Members and ask questions about the appeals.

Part 4

The Committee's Jurisdictions

ARTICLE 10:
The Committee shall has the authority to hear appeals against the PSP Projects’ tendering and awarding procedures, including the following:
  • Appeals against the terms and requirements of the RFQ or the RFP.
  • Appeals against the outcomes of the SOQs evaluation, and against the shortlist of qualified bidders.
  • Appeals against the outcomes of proposals’ evaluation, and against the selection of the preferred bidder.
  • Appeals against the outcomes of the awarding process.

Part 5

Appeals Requirements

ARTICLE 11:
Appeals against the PSP Projects’ tendering and awarding procedures may be filed in any of the following cases:
  • If the complainant had informed the Contracting Authority - within the specified period of submission of the SOQ response to the RFQ, or the specified period of submission of the proposal to the RFP – of a defect in the RFQ or the RFP that would unjustifiably impede or limit competition, and the Contracting Authority did not take the needed corrective actions.
  • If the complainant had submitted his SOQ in response to the RFQ, - within the period specified in the RFQ -, which fulfills the qualification requirements, and was not shortlisted as a qualified bidder.
  • If the complainant had submitted a bid that is in compliance with the terms specified in the RFP, and was not selected as the preferred bidder, where he should be the preferred bidder per the evaluation criteria specified in the RFP.
  • If the complainant was selected as the preferred bidder, and passed the final negotiation stage, and the award procedures were not completed with him.
ARTICLE 12:
An appeal shall be submitted to the Committee within ten working days of the date of the occurrence of the disputed action, in calculating this duration, the following shall be taken into account:
  • Appeals against the terms and requirements of the RFQ or the RFP, shall be submitted within ten working days of the date of publication of the request on the website of the Contracting Authority and NCP.
  • Appeals against the outcomes of the SOQ evaluation and against the shortlist of qualified bidders, shall be submitted within ten working days from the date of the announcement of the outcomes and the shortlist on the Contracting Authority and NCP websites.
  • Appeals against the outcomes of proposals’ evaluation and against the selection of the preferred bidder, shall be submitted within ten working days from the date of the Contracting Authority announcement of the outcomes of the tendering process and the preferred bidder.
  • Appeals against the outcomes of the awarding process, shall be submitted within ten working days from the date of the conclusion of the final negotiations.
ARTICLE 13:
The Committee shall, in all cases, verify the legal capacity of the complainant and his representative, and correctness of the complainant representation.
ARTICLE 14:
Appeals submission procedures:
  • Appeals shall be submitted to the Secretariat with a copy of the documents, alongside the original copy for accuracy conformity - if necessary -. Appeals may be submitted through the electronic means provided by the Secretariat, in accordance with the requirements set out therein.
  • Appeals shall fulfill the following requirements:
    • Appeal shall includes - at a minimum - the following:
      • The capacity of the complainant (principal, agent, or legal representative)
      • The full name of the complainant or claimant, his profession or job - if any -, his place of residence, his identification or commercial registration number - if any -, and the name, profession, residence, and identification number of his representative.
      • The complainant’s contact information (geographic address - national address - e-mail address - phone number), and contact information for his agent or legal representative.
      • The date of submitting the appeal.
      • A description of the PSP Project subject of appeal.
      • A detailed description of the procedures taken before submitting the appeal.
      • A detailed description of the facts and grounds for the appeal.
      • The supporting documents, proofs, and evidence of the appeal's grounds.
      • The complainant’s demands.
      • An irrevocable and unconditional bank guarantee in favor of NCP issued by a licensed bank operating in the Kingdom.
    • It is not acceptable to combine several non-related topics, PSP Projects, or requests in one appeal.
  • The Secretariat shall notify the complainant if any of the requirements stipulated in Paragraph (2) of this Article are not met, and the complainant must fulfill those requirements within ten working days from the date of the notification, otherwise, the appeal shall be null.
  • If the Committee finds that the appeal submitted by the complainant was in accordance with paragraph (2) of this Article but is not clear in the way necessary to review and decide on the appeal, the Secretariat shall notify the complainant of what is necessary to clarify his appeal within ten working days from the date of the notification.
  • In the event that the complainant was unable to clarify his appeal in accordance with the requirements of these Rules or refrains from doing so, the Committee may issue a decision to dismiss the appeal.
ARTICLE 15:
  • The value of the guarantee provided by the complainant shall be (1%) of the estimated value of the PSP Project, and if the value of the PSP Project cannot be estimated, the complainant shall provide a bank guarantee of (5.000,000) SAR. In all cases, the value of the guarantee shall not be less than (1,000,000) SAR and not exceeding (5,000,000) SAR.
  • The guarantee shall be valid for a period of not less than (90) days from the date of the filing of the appeal to the Committee, unless the Committee decides to ask the complainant to extend the duration of the guarantee.
  • The appeal shall not be valid if the bank guarantee is not submitted in accordance with the requirements stipulated in the Law.
ARTICLE 16:
  • The Secretariat shall notify the party needed to be notified by at least two of the following means of notification, and the notification shall produce their statutory effects from the date of its issuance:
    • Registered letter by mail.
    • Official email.
    • Recorded phone call.
    • Announcement via the official website of the Committee.
    • Any other means approved in the Kingdom as means of judicial notification.
    • Any other means of communication that the Committee deems appropriate and fulfills the purposes of notification.
  • Notification in accordance with subparagraph (a) of paragraph (1) of this Article shall be made at one of the following addresses:
    • The National address, or the address chosen by the parties or their legal representatives as per the appeal or any of the submitted memos or documents.
    • Address registered with the Ministry of Interior.
    • The address recorded in the commercial register. And for companies where the notification is directed to one of its branches, the notification shall be through the address recorded in the commercial register of that branch.
    • The address contained in the documents submitted by the complainant.
    • The address chosen by foreigners in the Kingdom.
  • If the place of residence or address of the party to be notified is unknown, or if the notification was not possible to be delivered, the Chairman - after coordination with the Secretariat - may decide the method he deems appropriate and satisfactory for the purposes of delivering the notification, and may, for that purpose, notify through the competent authorities, or publish in the Official Gazette or any of the local newspapers.
ARTICLE 17:
The complainant and the defendant shall be notified of the appeal submitted to the Committee in accordance with the following:
  • With regard to government entities, the notification shall be served to its head or anyone acting on his behalf.
  • With regard to commercial companies and private establishments, the notification shall be served to one of the partners, to the chairman of the board of directors or anyone who takes their place, or to the owner of the private establishment or anyone acting on his behalf.
  • With regard to foreign companies that have a branch or agent in the Kingdom, the notification shall be served to the manager of this branch or agent or his anyone acting on his behalf.
  • With regard to those residing outside the Kingdom, the notification shall be served through the official e-mail address, or through the Ministry of Foreign Affairs, and in this case, it is sufficient to receive a confirmation of serving the notification.
ARTICLE 18:
Once the appeal has been received - and if the requirements of paragraph (2) of article (14) have been met -, the Secretariat shall issue a written receipt to the complainant specifying the complainant and the defendant, and the date and time of receiving the appeal, a copy of the receipt shall be kept in the Committee records.

Part 6

Hearing and Deciding on Appeals

ARTICLE 19:
  • The Committee shall commence its review to the completed appeals in accordance with the requirements of these Rules within a period not exceeding two working days from the date of their preservation in the Committee's records.
  • The Committee shall hold the session to hear the appeals, in the presence of its Members and Chairman, and the parties shall be notified of the session's date at least five working days before the session's date. These sessions shall be closed to the public, unless the Committee decides otherwise.
  • Any of the parties may directly submit to the Committee the interlocutory requests that the Committee authorizes to submit, which are related to the original claim.
  • With the approval of the Committee, the complainant and any other parties or witnesses deemed necessary may attend the sessions through available electronic means.
  • The complainant or his representative must attend the session on time. If he fails to attend the session without a reason that is acceptable to the Committee, the complainant will have been deemed to have withdrawn his appeal.
  • The Contracting Authority's representative shall attend the session on time. If he fails to attend the session without a reason that is acceptable to the Committee, the Committee shall continue with the appeal process and issue a decision thereon as it deems fit based on the documents submitted thereto.
  • Requests and defenses shall be submitted before the Committee in clear written memos, the Committee may be satisfied with what any of the parties testify verbally, and the Committee may request the parties to write down their statements and pleas to negate ignorance or ambiguity.
  • The Committee's minutes of meetings shall be prepared under the supervision of the Chairman in a special record prepared for this purpose. The minutes shall record the session's date, session’s starting and ending time, place, and the names of the Members and the appeal's parties present, as well as all the procedures and proceedings during the session and the testimonies heard therein, and the parties' statements, requests, and responses. The minutes shall be signed by the Members and Secretary.
ARTICLE 20:
Evidence may be presented before the Committee through all legal means of presenting evidence in force in the Kingdom.
ARTICLE 21:
While hearing appeals, the Committee may take the following:
  • Submit written inquiries to the appeal parties, and any individual or party related to the Contracting Authority or to the complainant, and request information, documents, and reports relevant to the appeal.
  • Summon the appeal parties and any party or individual related to the Contracting Authority or to the complainant to hear their statements or testimonies.
ARTICLE 22:
  • The Committee may seek the assistance of one or more experts to provide support to the Committee, and the decision to appoint the expert shall specify the deadline for submitting his report, as well as the expert's expenses and fees, the Committee may request the expert’s opinion orally in the session, in which case his opinion shall be recorded in the session minutes.
  • When appointing experts, the Committee shall take into account the following:
    • The expert is licensed to practice his profession in accordance with the applicable laws in force in the Kingdom.
    • The expert's technical qualifications are compatible with the task to be assigned thereto.
    • The expert is independent of the parties to the appeal.
    • The expert does not have any conflict of interest.
  • Where the Committee’s decision is not in favor of the complainant, the complainant shall bear all the expert's reasonable and properly incurred expenses and fees, and shall deposit the amount to NCP account within five working days from the date of receiving the Committee’s notification of the expenses incurred.
ARTICLE 23:
  • Appeals processing, conducting hearing sessions, and recording the session's minutes shall be in Arabic, and the Committee may transcribe them - in addition to the Arabic language - in English if it deems this necessary, and the Committee's decision issued for the appeal shall be in Arabic.
  • The Committee may request the translation of documents that it deems necessary, provided that the translation is made by a licensed translator, and the translation shall be attached to the appeal documents.
ARTICLE 24:
  • The Committee shall decide on the appeals submitted thereto in a timely manner and issue its decision within thirty working days from the date of receiving the appeal, and its completion in accordance with the requirements of these Rules, the Committee may extend such period for another thirty working days once and for justified reasons.
  • The Committee's decisions shall be issued by the majority of its Members' votes, and a Member may not abstain from voting, or delegate to another Member to vote in his absence on his behalf, and in the event of a tie, the Chairman shall have the casting vote, all Members shall sign the decision. If the decision is taken by the majority of votes, this shall be noted in the decision, and the opposing opinion shall be submitted in writing and with justification, and it shall be added to the decision.
  • The Committee's decision must be reasoned and in writing and must include, in particular, the decision's number, date, and place of issuance, and a summary of the parties' statements and their names and their documents, the names and titles of Members and the manner in which they are present, the decision's grounds and wording, including compensation payable (if any), and the appeal procedures against the decision issued by the Committee.
  • The Committee shall notify the parties of its decision within five working days from the date of issuance thereof, and shall deliver a copy thereof to the appeal parties, and the copy shall be signed by the Chairman and Members.
  • The Committee shall correct written or arithmetical errors in the decision by a decision on its own discretion, or at the request of any of the parties. The correction shall be written on the original copy of the decision and shall be signed by the Chairman and Members.
  • Committee decisions are effective from the date of their issuance.
ARTICLE 25:
With respect to the hearing and decision issuance procedures, the Committee shall adhere to the provisions of the Law, the Governing Rules, the Implementing Regulations, and these Rules. And where there is no provision these instruments; the Committee shall apply the laws and regulations applicable in the Kingdom in line with the nature of the appeal submitted to the Committee.
ARTICLE 26:
If the appeal involves a legal violation, the Committee shall provide NCP with a written notification to take necessary action, and the Committee shall continue reviewing the appeal and issue a decision thereon.
ARTICLE 27:
  • The Committee's decision shall not provide for granting the complainant a compensation if the Committee's decision to accept the appeal as valid was issued prior to signing the Contract.
  • The Committee must return the complainant’s bank guarantee if its decision to accept the appeal as valid was issued prior to signing the contract.
  • The Committee's decision shall be executed in accordance with applicable laws, regulations, and rules in force in the Kingdom.
ARTICLE 28:
  • If the Committee's decision to accept the appeal as valid was issued after signing the Contract, the Committee shall specify in its decision the compensation due to the complainant for the actual direct damages incurred as a result of the disputed act, according to the evidence provided by the complainant for damages, including the costs, expenses, and fees incurred by the complainant for filing the appeal and litigating, moreover, the decision shall include the release of the bank guarantee.
  • If the Committee's decision was to reject the appeal and its invalidity, the decision must include a full or partial confiscation of the bank guarantee submitted by the complainant, as decided by the Committee, and it shall be deposited in the state treasury.
  • The compensation shall not, in any case, exceeds (5,000,000) SAR.
  • The Committee's decision on the compensation shall be executed in accordance with applicable Laws and regulations in force in the Kingdom.

Part 7

Entry into Force

ARTICLE 29:
These Rules shall enter into force based on the decision on which they are approved and issued.