Wakilii

Abasamia Hwolerane Association Limited v Jinja City Council (Application No 12 of 2021)

Tribunal · [2021] UGPPDPAAT 15 · 2021 Matter Remitted for Re-evaluation AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the Public Procurement and Disposal of Public Assets Appeals Tribunal following unsuccessful administrative review of procurement decision
Decision
Matter remitted to Jinja City Council for re-evaluation of bids

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that Rojoke Photo Lab & Co. Ltd should have been disqualified for conflict of interest arising from submission of bids for multiple items in the same category through connected entities controlled by the same individual. The Tribunal found that the Accounting Officer failed to make an explicit decision on the administrative review as required by law, that the correction of the best evaluated bidder notice was not properly communicated, and that the Applicant's performance was improperly rated as unsatisfactory without basis in the evaluation report. The procurement was remitted for re-evaluation.

Outcome

Matter remitted to Jinja City Council for re-evaluation of bids

Facts

Jinja City Council advertised procurement for revenue collection services divided into four categories, with a prohibition on bidding for more than one item per category. For revenue collection in Jinja City South West (Category A, Item 1), five bidders submitted bids. After evaluation, Rojoke Photo Lab & Co. Ltd was ranked first and Abasamia Hwolerane Association Ltd second. The best evaluated bidder notice incorrectly named Rojoke Photo Lab and Art (a business name) instead of Rojoke Photo Lab & Co. Ltd (the company) and stated the contract price as 10% instead of 5.9%. The Applicant sought administrative review, complaining that Rojoke Photo Lab entities had bid for multiple items in Category A contrary to the tender conditions, that the wrong entity was named as best evaluated bidder, and that the Applicant's previous performance was unfairly rated as unsatisfactory. The administrative review committee found no merit in the complaints. The Applicant then applied to the Tribunal.

Issues

  1. Whether Rojoke Photo Lab & Art Co. Ltd should have been disqualified for submitting bids for more than one item in category A of the procurement?
  2. Whether the contract for revenue collection of property rates and ground rent in Jinja City South West in Southern Division was awarded to a non-existent company which did not bid?
  3. Whether the Respondent erred in law and fact when it corrected the notice of best evaluated bidder in respect of the name and contract price of the best evaluated bidder?
  4. Whether the Respondent erred in law and fact when it found that the Applicant's performance in the previous contracts was unsatisfactory?
  5. Whether the Respondent erred in law and fact when it found that there was no influence by Rojoke Photo Lab & Art?
  6. What remedies are available to the parties?

Orders

  • The procurement for enforcement of collection of revenue from property rates and ground rent in Jinja City South West in Southern Division is remitted back to the Respondent for re-evaluation.
  • Application for declaration as best evaluated bidder dismissed.
  • Application for damages and costs dismissed at this stage.
  • Application for disciplinary action against officials dismissed at this stage.

Rules and key headnotes

Public Procurement — Administrative Review — Accounting Officer's Duty to Make Explicit Decision
Under section 89(7) of the Public Procurement and Disposal of Public Assets Act as amended, the Accounting Officer must make an explicit decision within ten days of receipt of a complaint and communicate to the complainant the decision, reasons for the decision, and corrective measures if any. Merely forwarding the administrative review committee's report without making an explicit decision does not satisfy this statutory requirement, as the committee's report is advisory only.
Public Procurement — Tribunal Jurisdiction — Application Where No Decision Made
Where an Accounting Officer fails to make a decision within ten days of receipt of a complaint for administrative review, the Tribunal has jurisdiction to entertain an application under section 89(8) of the Public Procurement and Disposal of Public Assets Act as amended, notwithstanding the absence of an explicit decision to appeal against.
Public Procurement — Conflict of Interest — Connected Entities Controlled by Same Individual
A bidder has a conflict of interest and must be disqualified where the bidder submits bids for more than one item in the same category through connected entities (a company and a business name) both controlled by the same individual who holds a controlling shareholding in the company and is the sole proprietor of the business name. The separate legal personality of the company cannot be used as a façade to circumvent the conflict-of-interest prohibition in the tender conditions.
Public Procurement — Invitation to Bid as Part of Solicitation Documents
The invitation to bid is part of the solicitation documents as defined in section 3 of the Public Procurement and Disposal of Public Assets Act 2003 and must be complied with. A provision in the bidding documents stating that the bid notice is not part of the bidding documents cannot override the express provisions of the Act.
Public Procurement — Correction of Best Evaluated Bidder Notice — Compliance with Regulation 85
Under regulation 85 of the Local Governments (Public Procurement and Disposal of Public Assets) Regulations 2006, a corrected notice of best evaluated bidder must be displayed on the procuring entity's notice board for a minimum of ten working days prior to contract award and must be sent to all bidders who participated in the procurement. A purported correction that is not displayed as required and for which there is no evidence of receipt by bidders does not comply with the law.
Public Procurement — Evaluation — Power to Rate Performance Vested in Evaluation Committee
The power to evaluate bids and rate bidders' performance is vested in the evaluation committee. An Accounting Officer or other official has no power to formulate reasons for a bidder's ranking that are not supported by the evaluation committee's report. Where the evaluation report does not rate a bidder's performance as unsatisfactory and the bidder passed technical and financial evaluation, subsequent claims of unsatisfactory performance in the best evaluated bidder notice and administrative review report are without basis.

Legislation cited (8)

Cases cited (2)

  • Jones v Lipman (1962) 1 WLR 832
  • Globe World Engineering (U) Limited v Jinja City Council (Application No. 11 of 2021)

Full judgment

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Abasamia Hwolerane Association Limited v Jinja City Council (Application No 12 of 2021) 2021 UGPPDPAAT 15 (23 August 2021)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.