Wakilii

Coil Limited v National Housing and Constructio Company Limited (Application No 23 of 23)

Tribunal · [2021] UGPPDPAAT 7 · 2021 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of administrative decision dismissing complaint regarding tender disqualification
Decision
Administrative review decision set aside; procurement remitted for fresh evaluation from detailed evaluation stage; administrative review fees to be refunded to applicant

Observed later treatment

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Holding

The Tribunal held that the Accounting Officer erred by failing to state reasons for dismissing the complaint in the initial decision letter, violating section 89(7) of the PPDA Act. The Accounting Officer complied with the duty to provide a report indicating reasons for bid rejection under section 89(4). The Tribunal found glaring inconsistencies and omissions in the evaluation report, including blanket waivers without proper documentation and incomplete post-qualification evaluation. The procurement was remitted for re-evaluation from the detailed evaluation stage.

Outcome

Administrative review decision set aside; procurement remitted for fresh evaluation from detailed evaluation stage; administrative review fees to be refunded to applicant

Facts

National Housing and Construction Company Limited issued a tender for completion of works at Jasmine Apartments, Naalya. Eleven bidders submitted bids. The evaluation committee recommended King Albert Constructions Ltd as the best evaluated bidder at UGX 8,409,815,496. Coil Ltd was disqualified at the technical evaluation stage on grounds that only two of its three submitted projects met similarity requirements, with the third project allegedly completed in February 2015, falling outside the required five-year period. Coil Ltd challenged this, presenting a completion certificate dated 11 February 2017. The Accounting Officer dismissed Coil Ltd's administrative review complaint on 11 October 2021 without stating reasons in that letter, providing reasons only in a subsequent letter dated 18 October 2021. Coil Ltd applied to the Tribunal challenging the Accounting Officer's decision and the evaluation process.

Issues

  1. Whether the entity's accounting officer erred in law and fact when he failed to give reasons for his decision.
  2. Whether the entity's accounting officer erred in law and fact when he refused to avail the documents requested for by the applicant for the purposes of administrative review.
  3. Whether the entity erred in law and fact when it decided that only two out of the three projects presented as similar assignments met all the attributes of similarity, that the third project falls outside the last five years, that it was concluded in February 2015.

Orders

  • The Application partially succeeds.
  • The administrative review decision of the accounting officer is set aside.
  • The procurement is remitted back to the Entity, with directions to conduct a fresh evaluation from the detailed evaluation stage, in a manner consistent with this decision, the PPDA Act and regulations and the bidding document.
  • The Entity must refund the administrative review fees paid by the Applicant.
  • The Tribunal's suspension order dated October 25, 2021 is vacated.
  • Each party to bear its own costs.

Rules and key headnotes

Administrative Law — Duty to Give Reasons — Statutory Obligation under PPDA Act
An Accounting Officer deciding an administrative review complaint under section 89(7) of the Public Procurement and Disposal of Public Assets Act must state reasons for the decision in the letter communicating that decision. Providing reasons in a subsequent letter does not cure the breach of the statutory obligation, even where the Accounting Officer mistakenly believed the reasons had been communicated.
Administrative Law — Duty to Give Reasons — Function of Due Process and Justice
The duty to give reasons is a function of due process and justice. Fairness requires that parties, especially the losing party, should be left in no doubt why they have won or lost, and without reasons the losing party will not know whether the decision-maker has misdirected itself and thus whether an appeal is available. The requirement to give reasons concentrates the mind and makes the resulting decision more likely to be soundly based on the evidence.
Administrative Law — Disclosure of Documents — Limits of Statutory Obligation
Under section 89(4) of the Public Procurement and Disposal of Public Assets (Amendment) Act 2021, an entity's obligation upon request by a bidder is to provide a report indicating the reasons for rejection of the bidder and the stage at which the bidder was rejected. The Accounting Officer is under no further duty to avail the bidder with minutes of the Contracts Committee or Evaluation Committee.
Administrative Law — Public Procurement — Evaluation Criteria — Material Deviation
In determining whether an omission is a material deviation in bid evaluation, the entity must first determine whether a bid was substantially compliant and responsive. The test to determine whether a deviation is material is an objective, not a subjective test. Blanket waivers of evaluation criteria must specify the names of bidders affected, details of the waivers, and recorded justification for waiving mandatory evaluation criteria.
Administrative Law — Public Procurement — Clarification of Bids — Limits
Clarification of bids under section 73 of the Public Procurement and Disposal of Public Assets Act 2003 and Regulation 10(2) of the Evaluation Regulations 2014 may be used where the evaluation committee determines it will assist in evaluation or to provide missing details in submitted information or documents. Clarification is not meant to introduce new information or documents in order to cure a material deviation in the bid.
Administrative Law — Public Procurement — Post-Qualification Evaluation — Mandatory Requirement
Under Regulation 34(1) of the Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014, an evaluation committee shall undertake a post-qualification evaluation to confirm whether the best evaluated bidder has the capacity and resources to effectively execute the procurement. Partial compliance with post-qualification requirements is irregular and contrary to the Regulations.

Legislation cited (11)

Cases cited (6)

  • Matthew Hall Ortech Limited v Tarmac Roadstone Limited (1997)
  • Flannery v Halifax Estate Agencies Limited [2000] 1 ALL ER 373
  • Mariana and others v BHP plc and BHP Ltd [2021] EWCA Civ 1156
  • China Aero-Tech International Engineering Corporation (CATIC) v PPDA (Application No. 1 of 2016)
  • Roko Construction Ltd & Roko Construction (Rwanda) Ltd JV v PPDA (Application No. 6 of 2019)
  • Smileplast Ltd v Public Procurement and Disposal of Public Assets Authority & National Agricultural Advisory Services (Application No. 13 of 2020)

Full judgment

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

Coil Limited v National Housing and Constructio Company Limited (Application No 23 of 23) 2021 UGPPDPAAT 7 (15 November 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.