Wakilii

Apple Properties Limited v Uganda Human Rights Commission (Application No 1 of 2023)

Tribunal · [2023] UGPPDPAAT 4 · 2023 Matter Remitted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of procurement decision following rejection of bid and award to another bidder
Decision
Procurement remitted to Respondent for re-evaluation

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that the Accounting Officer failed to properly guide the Applicant on administrative review fees and failed to conduct a timely administrative review. The Applicant's bid was lawfully rejected for failure to obtain the bidding document directly from the Respondent as required by regulation 48(a). However, the Tribunal found unexplained discrepancies in the power of attorney of the best evaluated bidder, including apparent post-dating and pre-registration that suggested possible prior knowledge of confidential procurement information. The evaluation committee failed to properly scrutinise these documents. The procurement was remitted back to the Respondent for re-evaluation.

Outcome

Procurement remitted to Respondent for re-evaluation

Facts

Uganda Human Rights Commission initiated procurement for office space using open domestic bidding. Apple Properties Limited paid for the bidding document on November 8, 2022 at 8:13 pm through Payway and submitted a bid on November 9, 2022. Global Center Limited had paid for the bidding document on November 2, 2022 and received it on November 3, 2022 via email to [email protected]. Rumme Investments Limited also submitted a bid. The Respondent rejected Apple Properties' bid on grounds that there was no evidence the bidder obtained the bid document directly from the Respondent. Rumme Investments Limited was declared the best evaluated bidder at UGX 123,616,800 per month VAT inclusive. Apple Properties sought administrative review on December 23, 2022. The Accounting Officer rejected the complaint on January 5, 2023, outside the statutory ten-day period. Apple Properties then filed this application with the Tribunal on January 12, 2023.

Issues

  1. Whether the format of the Application is competent.
  2. Whether the Response to the Application was filed out of time.
  3. Whether the documents attached to the Respondent's submissions can be lawfully relied on in the determination of the Application.
  4. Whether the Accounting Officer of the Respondent erred in law when he failed to guide the Applicant on payment of administrative review fees.
  5. Whether the Accounting Officer of the Respondent failed to carry out an administrative review.
  6. Whether the Respondent erred when it rejected the Applicant's bid.
  7. Whether the Respondent erred when it declared Rumme Investments Ltd. as the best evaluated bidder.

Orders

  • The Application is allowed in part.
  • The procurement of Office Space for the Head Office of the Respondent under Procurement Ref No. UHRC/NCONS/22-23/00005 is remitted back to the Respondent for re-evaluation in a manner not inconsistent with this decision.
  • The Tribunal's suspension order dated January 12, 2023 is vacated.
  • Each party to bear its own costs.

Rules and key headnotes

Administrative Law — Public Procurement — Administrative Review — Duty to Guide on Fees
Upon receipt of an application for administrative review, an Accounting Officer is duty-bound to automatically advise the complainant on the prescribed administrative review fees and where to pay the said fees, without waiting for a request for such guidance.
Administrative Law — Public Procurement — Administrative Review — Statutory Timeline
The provisions of section 89(7) of the Public Procurement and Disposal of Public Assets Act requiring an Accounting Officer to make and communicate an administrative review decision within ten days from the date of receipt of the application are mandatory, and a decision made outside this timeline is a nullity.
Administrative Law — Public Procurement — Bid Eligibility — Direct Procurement of Bidding Document
Bidders who did not obtain the bidding document directly from the Procuring and Disposing Entity must be rejected during evaluation in accordance with regulation 48(a) of the Public Procurement and Disposal of Public Assets (Rules and Methods for Procurement of Supplies, Works and Non-Consultancy Services) Regulations 2014, even if they quote the lowest price.
Administrative Law — Public Procurement — Evaluation — Duty of Scrutiny
An evaluation committee has a duty to conduct proper scrutiny and due diligence on powers of attorney and supporting documents submitted by bidders, and must investigate apparent discrepancies such as post-dating or pre-registration that may suggest prior knowledge of confidential procurement information.
Administrative Law — Merits Review — Scope of Review Powers
The Public Procurement and Disposal of Public Assets Appeals Tribunal as a merits review body has wide powers to consider both the lawfulness of the procurement decision it is reviewing and the facts going to the exercise of discretion, whether raised by the applicant or not, provided all interested parties are given an opportunity to be heard and procedural fairness is observed.
Statutory Interpretation — Prescribed Forms — Substantial Compliance
Where any form is prescribed by statute, an instrument or document which purports to be in such form shall not be void by reason of any deviation from that form which does not affect the substance of the instrument or document or which is not calculated to mislead.
Administrative Law — Public Procurement — Principles — Non-Discrimination and Transparency
All public procurement must conform to the principles of non-discrimination, transparency, accountability and fairness, maximisation of competition, ensuring value for money, confidentiality, and promotion of ethics. All bids should be considered on the basis of their compliance with the terms of the solicitation document, with no undisclosed preferences, no secret preferences, and no discussions or decisions made except above-board.

Legislation cited (20)

Cases cited (9)

  • Kasokosoko Services Ltd v Jinja School of Nursing and Midwifery (Application No. 13 of 2021)
  • Orungo Market Vendors Association v Amuria District Local Government (Application No. 41 of 2022)
  • Vision Scientific & Engineering Limited v Makerere University (Applications No. 26 and 27 of 2022)
  • Frida B. Kwikiriza v Buliisa District Local Government (Application No. 28 of 2022)
  • Mbarara University of Science & Technology v Public Procurement and Disposal of Public Assets Authority & Steam Investments (U) Ltd (High Court Civil Appeal No. 93 of 2020)
  • Samanga Elcomplus JV v Uganda Electricity Distribution Company Limited (Application No. 17 of 2021)
  • Vcon Construction Ltd v Uganda Development Bank (Application No. 22 of 2021)
  • Wen Jie v Nabimanya Isaac and Another (High Court Civil Suit No. 605 of 2014)
  • Arua Municipal Council v Arua United Transporters' SACCO (High Court at Arua Civil Appeal No. 25 of 2017)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Apple Properties Limited v Uganda Human Rights Commission (Application No 1 of 2023) 2023 UGPPDPAAT 4 (2 February 2023)
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.