Wakilii

CRJE (East Africa) Limited v National Council for Higher Education (Application 27 of 2024)

Tribunal · [2024] UGPPDPAAT 30 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of procurement decision to cancel best evaluated bidder notice
Decision
Matter remitted to Respondent for further proceedings not inconsistent with the law and this decision

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that it had jurisdiction to review the matter because the Contracts Committee unlawfully convened itself without a proper request from the Procurement and Disposal Unit and illegally purported to revoke the Notice of Best Evaluated Bidder. The Authority's investigation was unlawful as it fell outside the four corners of section 7(j) of the Act, which requires an ongoing audit before the Authority can exercise its investigative powers. The cancellation of the best evaluated bidder notice was therefore erroneous and unlawful.

Outcome

Matter remitted to Respondent for further proceedings not inconsistent with the law and this decision

Facts

The National Council for Higher Education initiated a tender for construction of its main building offices on January 25, 2024. After evaluation, CRJE (East Africa) Ltd was declared the best evaluated bidder on April 2, 2024, at a contract price of UGX 123,089,038,802. On April 12, 2024, a whistleblower filed a complaint with the Public Procurement and Disposal of Public Assets Authority alleging irregularities. On May 7, 2024, the Authority issued a report recommending re-evaluation of bids. On May 9, 2024, the Respondent's Contracts Committee convened a special sitting and resolved to cancel the best evaluated bidder notice and adopt the Authority's recommendation to re-evaluate all bids. The Applicant challenged this decision through administrative review, which was dismissed on May 24, 2024, prompting this application to the Tribunal.

Issues

  1. Whether the Tribunal has jurisdiction to determine the instant application?
  2. Whether the decision of the Respondent's Accounting Officer was made within statutory timelines?
  3. Whether the investigation by the Public Procurement and Disposal of Public Assets Authority was lawful?
  4. Whether the Respondent's decision to cancel the best evaluated bidder notice of April 2, 2024, was lawful?
  5. What remedies are available to the parties?

Orders

  • The Application is allowed.
  • The impugned cancellation of the best evaluated bidder notice of April 2, 2024, is set aside.
  • The Tribunal hereby remits the procurement back to the Respondent for further proceedings not inconsistent with the law and this decision.
  • The Tribunal's suspension order dated 29th May 2024 is vacated.
  • The Respondent shall refund the administrative review fees paid by the Applicant.
  • Each party shall bear its own costs.

Rules and key headnotes

Public Procurement — Contracts Committee — Functus Officio — Unlawful Convening
Once a Contracts Committee lawfully sits, adjudicates, and approves recommendations by the Evaluation Committee to award a contract, the Contracts Committee becomes functus officio to that procurement process and cannot lawfully convene itself again without a specific request from the Procurement and Disposal Unit using the appropriate Forms specified in the Regulations.
Public Procurement — Cancellation of Bids — Distinction from Revocation of Best Evaluated Bidder Notice
The act of revoking and vacating the Notice of Best Evaluated Bidder by a procuring and disposing entity is not the same as and does not amount to cancellation of bids as envisaged under section 75(1) of the Public Procurement and Disposal of Public Assets Act 2003. Cancellation means bringing to a complete end or indefinitely calling off the continuation of successive stages in the procurement cycle.
Public Procurement — PPDA Authority — Investigative Powers — Requirement of Ongoing Audit
The exercise of the regulatory function of the Public Procurement and Disposal of Public Assets Authority under section 8 must strictly fall within the four corners of section 7(j)(i)-(iii) of the Act. There must be an audit ongoing before the Authority can conduct an investigation under section 8(1)(e) or exercise any other powers under section 8(1).
Public Procurement — PPDA Authority — Advisory Recommendations — Non-Binding Nature
The recommendations of the Public Procurement and Disposal of Public Assets Authority arising out of a complaint after publication of a notice of best evaluated bidder are advisory and cannot be the basis for altering the outcome of a procurement or disposal process unless the complainant successfully applies for administrative review to the Accounting Officer or the Tribunal.
Public Procurement — Accounting Officer — Duty to Independently Investigate Complaints
Guidance from the Public Procurement and Disposal of Public Assets Authority does not absolve the Accounting Officer of the statutory responsibility to independently investigate complaints by providers. The Accounting Officer errs in law by rubber-stamping the Authority's guidance without conducting an independent investigation.
Public Procurement — Evaluation — Correction of Arithmetic Errors under 2023 Regulations
Under the Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2023, although correction of arithmetic errors is not specifically provided for as it was under the 2014 Regulations, the Evaluation Committee may determine whether financial bids are complete and make adjustments for any deviation that is not a material deviation using regulation 7, which permits correction of non-conformities and omissions that are not material.

Legislation cited (35)

Cases cited (10)

  • Preg-Tech Communications Limited v Uganda Police Force (Application No. 32 of 2021)
  • Ismael Dabule and 2 Others v Attorney General and Another (Constitutional Appeal No. 3 of 2007)
  • Kingdom Kampala v Judicial Service Commission (Application No. 34 of 2022)
  • Impiger Technologies Put Ltd v Higher Education Students Financing Board (Application No. 45 of 2022)
  • Achelis Uganda Ltd v Ministry of Lands, Housing and Urban Development (Application No. 25 of 2024)
  • EAA Company Ltd v Uganda National Bureau of Standards (Application No. 21 of 2023)
  • Mbarara City and MBJ Technologies v Obon Infrastructure Development JV (Civil Appeal No. 45 of 2021)
  • Tumwebaze Stephen Kiba v Mbarara City, UB Consulting Engineers Ltd in JV with Professional Engineering Consultants Ltd (Application No. 21 of 2022)
  • Kamba Saleh Moses v Hon Namuyangu Jennifer (Election Petition Appeal No. 0027 of 2011)
  • De souza v Tanga Town Council (Civil Appeal No. 89 of 1960)

Full judgment

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CRJE (East Africa) Limited v National Council for Higher Education (Application 27 of 2024) 2024 UGPPDPAAT 30 (20 June 2024)
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.