Chogm Tour Agents 2007(u) Ltd v Masaka Municipal Council,Local Government

Supreme Court · [2011] UGSC 4 · 2011 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal from a Court of Appeal decision affirming the High Court's dismissal of consolidated judicial review applications (certiorari, prohibition and mandamus)

Decision

Appeal dismissed with costs; Court of Appeal and High Court decisions affirmed

The full judgment

Read the complete, verbatim text of this judgment.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Supreme Court dismissed the second appeal. It held that a person who merely picked bid forms after the procurement process had closed, and did nothing more, did not satisfy the definition of a "bidder" under section 3 of the PPDA Act and therefore had no legal right enforceable by judicial review. PPDA lawfully entertained the complaint under sections 90 and 91, the complaint having first gone to the Town Clerk. The 22 September 2008 meeting was valid because PPDA's day-to-day functions are exercised by its Executive Director and staff under sections 10(2)(a) and 17(2)(a), not solely the Board. No fresh award occurred, no contract having been signed, and the respondent was bound to follow PPDA's temporary recommendations.

Facts

Two service providers held contracts to collect taxi park revenue for Masaka Municipal Council. A dispute arose when one provider complained that illegal transit stages operated by a rival were suffocating its operations, a problem compounded by the Mayor's personal interest. The complaint went to the Town Clerk and then to PPDA, which convened meetings and issued advice and recommendations, including halting an ongoing procurement process on 22 September 2008 and extending the complaining provider's contract pending a lasting solution. The appellant picked a bid form on 4 September 2008 and submitted it on 29 September 2008, after the declared 19 September closing date and after the process had been halted. Aggrieved by the halting of the bid opening and the contract extension, the appellant filed applications for judicial review (prohibition, mandamus and certiorari) in the High Court, Masaka. The applications were consolidated and dismissed; the Court of Appeal dismissed a further appeal, leading to this second appeal on five grounds.

Issues

Whether the respondent and PPDA contravened section 90 of the Act and regulations 138 and 139 by entertaining the complaint of a service provider before it was submitted in writing to the Accounting Officer.
Whether the meeting of 22 September 2008 contravened sections 8(e), 9(1) and 10(1) of the Act by being held by PPDA staff rather than its Board of Directors.
Whether the extension of an expired contract by the contract committee amounted to a fresh award of the tender contrary to procurement procedure.
Whether extending the contract amidst an ongoing procurement process contravened regulation 57 of the Regulations.
Whether the appellant had a legal right enforceable by way of judicial review.
Whether the respondent was bound to follow the recommendations of PPDA.

Orders

Appeal dismissed.
Costs of the appeal awarded to the respondent in the Supreme Court and the courts below.

Key headnotes

Judicial Review — Standing — Legal right enforceable by judicial review

A person who picks bid forms after the procurement process has closed and does nothing more does not show an intention to participate in procurement proceedings, is not a "bidder" within section 3 of the PPDA Act, and has no legal right enforceable by way of judicial review.

Public Procurement — PPDA — Exercise of authority's functions by Executive Director and staff

While the Board of Directors of PPDA formulates policy under section 10(2)(a), the day-to-day management and operation of the Authority is performed by the Executive Director and support staff under section 17(2)(a); recommendations made by staff in that capacity are valid and do not require the Board's direct action.

Public Procurement — Complaints procedure — Sequence of complaint to Accounting Officer then Authority

A bidder's complaint that is first submitted in writing to the Accounting Officer under section 90(1) and, on dissatisfaction, escalated to the Authority under section 90(3)(b), is lawfully entertained by the Authority under section 91(1), and does not contravene section 90 of the Act or regulations 138 and 139.

Public Procurement — Administrative Review Process — Non-mandatory nature

The Administrative Review Process under regulations 136-140 and section 89 of the Act is not mandatory; a bidder is not obliged to follow it.

Appeals — Role of a second appellate court — Re-evaluation of evidence

A second appellate court is not required to, and will not, re-evaluate the evidence as a first appellate court must, except where it is clearly necessary.

Legislation cited (19)

Public Procurement and Disposal of Public Assets Act, 2003 s.3
Public Procurement and Disposal of Public Assets Act, 2003 s.8(e)
Public Procurement and Disposal of Public Assets Act, 2003 s.9
Public Procurement and Disposal of Public Assets Act, 2003 s.9(1)
Public Procurement and Disposal of Public Assets Act, 2003 s.10(1)
Public Procurement and Disposal of Public Assets Act, 2003 s.10(2)(a)
Public Procurement and Disposal of Public Assets Act, 2003 s.17(2)(a)
Public Procurement and Disposal of Public Assets Act, 2003 s.89
Public Procurement and Disposal of Public Assets Act, 2003 s.90
Public Procurement and Disposal of Public Assets Act, 2003 s.90(1)
Public Procurement and Disposal of Public Assets Act, 2003 s.90(3)(b)
Public Procurement and Disposal of Public Assets Act, 2003 s.91
Public Procurement and Disposal of Public Assets Act, 2003 s.91(1)
Local Governments (Public Procurement and Disposal of Public Assets) Regulations, 2006 reg.57
Local Governments (Public Procurement and Disposal of Public Assets) Regulations, 2006 reg.57(4)
Local Governments (Public Procurement and Disposal of Public Assets) Regulations, 2006 reg.136-140
Local Governments (Public Procurement and Disposal of Public Assets) Regulations, 2006 reg.138
Local Governments (Public Procurement and Disposal of Public Assets) Regulations, 2006 reg.139
Local Governments (Public Procurement and Disposal of Public Assets) Regulations, 2006 reg.140(4)(c)

Cases cited (2)

Makula International Ltd v His Eminence Cardinal Nsubuga and Another (Civil Appeal No. 4 of 1981)
Milly Masembe v Sugar Corporation and Another (Civil Appeal No. 1 of 2000)

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