Wakilii

Basiima Consult Limited v Mbarara City Council (Application 24 of 2023)

Tribunal · [2023] UGPPDPAAT 25 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of procurement decision following failure of Accounting Officer to respond to administrative review complaint within statutory timelines
Decision
Application dismissed; procurement process may continue; suspension order vacated

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal dismissed the application. While the Accounting Officer breached statutory timelines by failing to communicate an administrative review decision within ten days, the Applicant's bid was properly rejected as non-responsive because the bid security submitted was confirmed by Equity Bank to be forged. The Applicant could not challenge the bid security requirement after submission without objection, per the doctrine of approbation and reprobation. The best evaluated bidder's bid was substantially compliant and responsive.

Outcome

Application dismissed; procurement process may continue; suspension order vacated

Facts

Mbarara City Council initiated procurement for collection of revenue from lorry parking fees using open domestic bidding on August 17, 2023. Two bids were received on September 6, 2023 from Basima Consult Limited and Ankole United Truck Owners and Drivers Cooperative Society Limited. Following evaluation, the contract was awarded to Ankole United at UGX 20,320,000 per month. The Notice of Best Evaluated Bidder was displayed on September 29, 2023. Basima Consult applied for administrative review on October 2, 2023, alleging it submitted a valid bid security from Stanbic Bank but was rejected based on a false claim that it submitted a forged Equity Bank security. The Respondent conducted due diligence and Equity Bank denied issuing the bid security dated August 31, 2023 that appeared in Basima's bid documents. The Accounting Officer did not respond within the statutory ten-day period. Basima filed this application on October 19, 2023.

Issues

  1. Whether the Respondent erred in law and fact when it failed or omitted to avail a copy of the record of bid opening to the Applicant?
  2. Whether the Respondent erred in law and fact when it failed to display the record of bid opening?
  3. Whether the Respondent's Accounting Officer erred when he failed to communicate his decision for administrative review within the statutory timelines?
  4. Whether the Respondent erred in law and fact when it declared the Applicant's bid non responsive to the requirements of the bidding document?
  5. Whether the Respondent erred in law and fact when it declared Ankole United Truck Owners and Drivers Cooperative Society Limited as the best evaluated bidder?

Orders

  • Application dismissed.
  • Respondent at liberty to continue with the procurement process.
  • Tribunal's suspension order dated October 19, 2023 vacated.
  • Each party to bear its own costs.

Rules and key headnotes

Public Procurement — Administrative Review — Statutory Timelines for Accounting Officer Decision
An Accounting Officer is duty bound to make and communicate a decision within ten days upon receipt of a complaint from a bidder, and this duty is not waived and is not dependent on receipt of administrative review fees. Failure to make and communicate an administrative review decision within statutory timelines upon receipt of a complaint is a blatant breach of the law.
Public Procurement — Suspension of Procurement Process Upon Receipt of Complaint
A procuring entity is duty bound to immediately suspend a procurement process upon receipt of a complaint until the Accounting Officer makes and communicates a decision within ten days from the date of receipt of the complaint. The entity is not at liberty to continue with the procurement process merely because the best evaluated bidder notice expired before the applicant paid administrative review fees.
Public Procurement — Bid Security — Substantially Compliant and Responsive Bid
A substantially compliant and responsive bid is one that conforms to all the instructions, requirements, terms and conditions of the bidding document without material deviation or omission. Where a bid notice requires a bid security and due diligence reveals that the bid security submitted was denied as having been issued by the stated bank, the bid is not substantially compliant and responsive to the bidding document and is liable to be rejected. Failure to submit a bid security or submitting a false bid security is inconsistent with the bidding document and substantially limits the rights of the procuring entity.
Public Procurement — Doctrine of Approbation and Reprobation — Challenge to Bidding Criteria
A bidder cannot challenge the criteria in the bidding document after having submitted a bid without objection. Allowing such a challenge is inconsistent with the doctrine of approbation and reprobation, which bars a person from taking inconsistent positions in legal proceedings or actions. A bidder who could have sought clarification before bid submission but failed to do so cannot later contest the legality of requirements stated in the bid document.
Public Procurement — Administrative Review Fees — Non-Payment Not Fatal
Non-payment or delayed payment of administrative review fees is not fatal as long as actual fees can be assessed and paid. Late payment of fees is not necessarily fatal, and even actual non-payment of fees has been held not to be fatal so long as the proper fees can be assessed and paid.

Legislation cited (8)

Cases cited (6)

  • Mixjet Flight Support FZE v Uganda National Airlines Company Ltd (Application No. 4 of 2023)
  • Iron Investment and Construction Ltd, Smart Business Arua Entreprises Ltd & Oria and Sons Investment Ltd v Ministry of Water and Environment (Application No. 22 of 2023)
  • Nalu Tour and Travel Limited v Jinja City Council (Application No. 30 of 2022)
  • Roko Construction Ltd v PPDA and National Drug Authority (Application No. 4 of 2017)
  • Kasokosoko Services Ltd v Jinja School of Nursing and Midwifery (Application No. 13 of 2021)
  • Technology Associates Limited in Consortium with Comviva Technology Limited v Post Bank Uganda Limited (Application No. 6 of 2022)

Full judgment

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

Basiima Consult Limited v Mbarara City Council (Application 24 of 2023) 2023 UGPPDPAAT 25 (9 November 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.