Wakilii

CFAO Motors (U) Limited v National Forestry Athourity (Application No 16 of 2022)

Tribunal · [2022] UGPPDPAAT 15 · 2022 Application Partly Allowed — Procurement Cancelled AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of Accounting Officer's decision dismissing administrative review of procurement evaluation
Decision
Procurement cancelled; entity may retender

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that the applicant's bid security was not substantially responsive because it referenced ISP98 instead of the required URDG rules, constituting a material deviation. However, the Tribunal found that the procuring entity had unlawfully modified the standard bidding document by adding an alternative requirement for Supplier's Authorisation without prior PPDA approval, rendering the entire procurement void ab initio. The procurement was cancelled.

Outcome

Procurement cancelled; entity may retender

Facts

National Forestry Authority published a bid notice on 1 April 2022 for supply of vehicles using Restrictive Bidding Method. Two bidders submitted bids by 26 April 2022: CFAO Motors (U) Limited and Suma Bolt Logistics Limited. On 9 May 2022, Suma Bolt was declared Best Evaluated Bidder. CFAO's bid was rejected on grounds that its bid security did not comply with the required format. CFAO's bid security referenced ISP98 rules instead of the URDG rules specified in the bidding document. CFAO applied for administrative review on 19 May 2022, which was dismissed on 26 May 2022. CFAO then filed this application with the Tribunal on 8 June 2022, challenging both the rejection of its bid security and the entity's modification of the standard bidding document to allow Supplier's Authorisation as an alternative to Manufacturer's Authorisation.

Issues

  1. Whether the entity erred in law and fact in finding that the applicant's bid security substantially deviated from the bidding document?
  2. Whether the entity erred in law and fact in making modifications to the standard bidding document issued by PPDA for procurement of supplies, works and non-consultancy services on the Bidding Forms relating to Manufacturer's Authorisation?
  3. Whether the entity erred in law and fact in finding that Suma Bolt Logistics Limited was the best evaluated bidder?
  4. What remedies are available to the parties?

Orders

  • Application successful in part.
  • Procurement cancelled.
  • Entity may retender if it so wishes.
  • Suspension order dated 10 June 2022 vacated.
  • Each party to bear own costs.

Rules and key headnotes

Public Procurement — Bid Security — Material Deviation — Substantial Responsiveness
A bid security that references ISP98 rules instead of the URDG rules specified in the bidding document constitutes a material deviation and renders the bid non-responsive, as it amounts to a counter-bid with respect to key contract terms and conditions relating to enforcement of obligations through payment on default.
Public Procurement — Bid Security — Competitive Position — Fairness
Accepting a non-compliant bid security would unfairly affect the competitive position of other bidders whose bids were substantially responsive to the requirements of the bidding documents, thereby undermining the integrity of the tendering process.
Public Procurement — Standard Bidding Documents — Unauthorised Modification
A procuring and disposing entity cannot modify the content or substance of a standard bidding document issued by PPDA, including the Instructions to Bidders or bidding forms sections, without prior written authority from PPDA. Unauthorised modifications render the entire bidding process void ab initio.
Public Procurement — Customisation of Bidding Documents — Scope of Permitted Changes
Regulations permitting customisation of standard bidding documents allow only minor or cosmetic changes and do not constitute a blank cheque for overhauling the entire bidding document. Textual changes to Instructions to Bidders or bidding forms sections require prior PPDA authorisation.
PPDA Appeals Tribunal — Scope of Review — De Novo Merits Review
The PPDA Appeals Tribunal functions more like a court at first instance than an appellate court. It has powers to conduct a de novo merits review and may consider matters not raised during the administrative review stage before the accounting officer, as long as they relate to any omission or breach of the PPDA Act, regulations, or bidding documents.
Public Procurement — Compliance with PPDA Act — Mandatory Nature of Provisions
The provisions of the PPDA Act are mandatory and not merely directory. The Act cannot regulate practices in respect of public procurement unless its provisions are adhered to strictly to the letter, and non-compliance makes the proceedings fatal.
Corporate Law — Change of Name — Legal Effect
A change of company name does not reform or reincorporate a different company. A Tax Clearance Certificate issued in the former name of a company remains valid where a Certificate of Change of Name from the Registrar of Companies is produced.

Legislation cited (11)

Cases cited (9)

  • Graham Industrial Services Ltd v Greater Vancouver Water District & Anor (2004 BCCA 5)
  • Abamwe Transporters Cooperative Society Ltd v PPDA (Application No. 6 of 2016)
  • Sheema United Drivers Cooperative Society Ltd v PPDA (Application No. 1 of 2017)
  • Technology Associates Ltd & COMVIVA Technologies Ltd v Postbank Uganda Ltd (Application No. 06 of 2022)
  • Arua Municipal Council v Arua United Transporters SACCO (Civil Appeal No. 25 of 2017)
  • Public Procurement and Disposal of Public Assets Authority v Peace Gloria (Civil Appeal No. 6 of 2016)
  • Galleria in Africa Ltd v Uganda Electricity Distribution Company Ltd (Civil Appeal of 2017)
  • Engineering Solutions (U) Ltd v Ministry of Water and Environment (Application No. 24 of 2021)
  • Peace Gloria v PPDA (Application No. 3 of 2015)

Full judgment

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

CFAO Motors (U) Limited v National Forestry Athourity (Application No 16 of 2022) 2022 UGPPDPAAT 15 (27 June 2022)
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.